Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital as follows: (a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder. (b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement. (c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement. (d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder. (e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally. (f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”). (g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder. (h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement. (i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement. (j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 3 contracts
Sources: Interest Contribution Agreement (First Capital Real Estate Trust Inc), Interest Contribution Agreement (Photomedex Inc), Shareholder Voting Support and Confidentiality Agreement (First Capital Real Estate Trust Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby hereby, severally and not jointly, represents and warrants to First Capital Purchaser as follows:
(ai) Such Stockholder is either (A) the record holder or beneficial owner of the equity securities and/or any debt number of, or similar securities (B) trustee of a trust that is the record holder or beneficial owner of, and whose beneficiaries are convertible into equity securities the beneficial owners (such trustee, a "Trustee"), shares of the Company Common Stock as is set forth opposite the such Stockholder's name of such Stockholder on Schedule I to this Agreement. As hereto (the "Existing Shares").
(ii) On the date hereof, the Existing Shares set forth opposite such Stockholder's name on Schedule I hereto constitute all of the date outstanding shares of Company Common Stock owned of record or beneficially by such Stockholder. Such Stockholder does not have record or beneficial ownership of any Shares not set forth on Schedule I hereto.
(iii) Such Stockholder has sole power of disposition with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I and sole voting power with respect to the matters set forth in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I, with no restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement.
(iv) Such Stockholder will have sole power of disposition with respect to Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder and will have sole voting power with respect to the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company matters set forth opposite the name of in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder with no restrictions on Schedule I such rights, subject to applicable federal securities laws and the terms of this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such StockholderAgreement.
(b) If Such Stockholder has the Stockholder is a corporationlegal capacity, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute enter into and deliver perform all of such Stockholder's obligations under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement. The execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, Agreement by such Stockholder has the valid capacity will not violate any other agreement to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the which such Stockholder is a corporationparty or by which such Stockholder is bound including, partnershipwithout limitation, limited liability company any trust agreement, voting agreement, stockholders agreement, voting trust, partnership or other entity, this agreement. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and moratorium or other similar laws of general application affecting enforcement of creditors’ relating to creditor's rights generally.
, (fb) The executiongeneral principles of equity, whether such enforceability is considered in a proceeding in equity or at law, and to the discretion of the court before which any proceeding therefore may be brought, or (c) public policy considerations or court decisions which may limit the rights of the parties thereto for indemnification. All necessary consents of any beneficiary of or holder of interest in any trust of which a Stockholder is Trustee to the execution and delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay and the consummation of the transactions contemplated by the Contribution Agreement or hereby have been obtained. If such Stockholder is married and such Stockholder’s ability to observe 's Shares constitute community property, this Agreement has been duly authorized, executed and perform delivered by, and constitutes a valid and binding agreement of, such Stockholder's spouse, enforceable against such person in accordance with its material obligations hereunder (a “Stockholder Material Adverse Effect”)terms.
(gc) The executionExcept for filings under the HSR Act, delivery if applicable, (i) no filing with, and performance no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither the execution and delivery of this Agreement will not by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any of the provisions hereof shall (ix) conflict with or result in any breach of any applicable trust, partnership agreement or other agreements or organizational documents applicable to such Stockholder, (y) result in a violation or breach of, or default constitute (with or without notice or lapse of time, time or both) under, require consent under a default (or give rise to a any third party right of termination, cancellation cancellation, material modification or acceleration acceleration) under any of the terms, conditions or provisions of any obligation or the loss of any benefit under any (A) note, bond, mortgage, indenture, license, contract, trust, commitment, agreementarrangement, understanding understanding, agreement or arrangement other instrument or obligation of any kind (to which such Stockholder is a “Contract”) party or (B) permit, concession, franchise, right by which such Stockholder or license binding upon any of such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the 's properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, may be bound or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (iz) violate any provision of any order, writ, injunction, decree, judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder or any of such Stockholder's properties or assets.
(hd) Such Except for the shares of Company Common Stock identified in Schedule II hereto (the "Pledged Shares"), such Stockholder’s Subject Securities 's Shares and the certificates representing such Shares are now, now and at all times during the term hereof will be, be held by such Stockholder Stockholder, or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for (i) any such Encumbrances encumbrances or proxies arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(je) No broker, investment bankbanker, financial advisor adviser or other person is entitled to any broker’s's, finder’s's, financial adviser’s 's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder in his or her capacity as such.
(f) Such Stockholder understands and acknowledges that Purchaser is entering into the Merger Agreement in reliance upon such Stockholder's execution and delivery of this Agreement with Purchaser.
Appears in 3 contracts
Sources: Management Voting Agreement (Gni Group Inc /De/), Management Voting Agreement (Green I Acquisition Corp), Management Voting Agreement (Gni Group Inc /De/)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital Parent as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this AgreementAgreement and at all times through the Expiration Date:
(i) Such Stockholder is and will be the Beneficial Owner (free and clear of any encumbrances or restrictions) of the outstanding shares of Company Capital Stock set forth across from the heading “Shares of Company Capital Stock Beneficially Owned” below such Stockholders’ name on the signature page hereof.
(ii) Such Stockholder is and will be the Beneficial Owner (free and clear of any encumbrances or restrictions) of the outstanding Company Options and Other Rights set forth across from the heading “Company Options and Other Rights Beneficially Owned” below such Stockholders’ name on the signature page hereof (except to the extent that such Company Options and Other Rights are converted into, the equity securities and/or exercised or exchanged for shares of Company Capital Stock); and
(iii) Such Stockholder does not directly or indirectly Beneficially Own any debt shares of Company Capital Stock or similar securities that are convertible into equity Company Options or Other Rights or other securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of Company, other than the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of Company Capital Stock and Company Options and Other Rights set forth below such Stockholders’ name on the Company owned of record by such Stockholdersignature page hereof.
(b) If Such Stockholder has and will have the Stockholder is a corporationlegal capacity, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute enter into and deliver perform all of such Stockholder’s obligations under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Proxy. This Agreement has been duly authorized, executed and delivered by such Stockholder and, if such Stockholder is a corporation or partnership, has been duly authorized by all requisite corporate or partnership action of such Stockholder.
(e) This Agreement, assuming it constitutes as the case may be, and upon its execution and delivery by Parent, will constitute a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriummoratorium or other similar laws affecting or relating to creditors rights generally, fraudulent conveyance and the availability of injunctive relief and other laws of general application affecting enforcement of creditors’ rights generallyequitable remedies.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(gc) The execution, delivery and performance by such Stockholder of this Agreement will not (i) conflict with, require a consent, waiver or approval under, or result in a violation of, breach of or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties terms of any contract, commitment or assets other obligation (written or oral) to which such Stockholder is a party or by which any of such Stockholder’s assets may be bound, (iii) If the and, if such Stockholder is a corporation, corporation or partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (ivii) conflict with or violate any order, writ injunction, decree, judgment, order, statute, rule or regulation applicable lawsto such Stockholder or any of its assets.
(d) No filing with, other thanand no permit, in authorization, consent or approval of, any state or federal public body or authority is necessary for the case execution of clauses (i), (ii) this Agreement by such Stockholder and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholderhereby.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 3 contracts
Sources: Voting Agreement (Cornerstone Therapeutics Inc), Voting Agreement (Cornerstone BioPharma Holdings, Ltd.), Voting Agreement (Chiesi Farmaceutici SpA)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby hereby, severally and not jointly, represents and warrants to First Capital Merger Subsidiary as follows:
(ai) Such Stockholder is either (A) the record holder or beneficial owner of the equity securities and/or any debt number of, or similar securities (B) trustee of a trust that is the record holder or beneficial owner of, and whose beneficiaries are convertible into equity securities the beneficial owners (such trustee, a "Trustee"), shares of the Company Common Stock as is set forth opposite the such Stockholder's name of such Stockholder on Schedule I to this Agreement. As hereto (the "Existing Shares").
(ii) On the date hereof, the Existing Shares set forth opposite such Stockholder's name on Schedule I hereto constitute all of the date outstanding shares of Company Common Stock owned of record or beneficially by such Stockholder. Such Stockholder does not have record or beneficial ownership of any Shares not set forth on Schedule I hereto.
(iii) Such Stockholder has sole power of disposition with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I and sole voting power with respect to the matters set forth in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I, with no restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement.
(iv) Such Stockholder will have sole power of disposition with respect to Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder and will have sole voting power with respect to the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company matters set forth opposite the name of in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder with no restrictions on Schedule I such rights, subject to applicable federal securities laws and the terms of this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such StockholderAgreement.
(b) If Such Stockholder has the Stockholder is a corporationlegal capacity, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute enter into and deliver perform all of such Stockholder's obligations under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement. The execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, Agreement by such Stockholder has the valid capacity will not violate any other agreement to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the which such Stockholder is a corporationparty or by which such Stockholder is bound including, partnershipwithout limitation, limited liability company any trust agreement, voting agreement, stockholders agreement, voting trust, partnership or other entity, this agreement. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and moratorium or other similar laws of general application affecting enforcement of creditors’ relating to creditor's rights generally.
, (fb) The executiongeneral principles of equity, whether such enforceability is considered in a proceeding in equity or at law, and to the discretion of the court before which any proceeding therefore may be brought, or (c) public policy considerations or court decisions which may limit the rights of the parties thereto for indemnification. All necessary consents of any beneficiary of or holder of interest in any trust of which a Stockholder is Trustee to the execution and delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay and the consummation of the transactions contemplated by the Contribution Agreement or hereby have been obtained. If such Stockholder is married and such Stockholder’s ability to observe 's Shares constitute community property, this Agreement has been duly authorized, executed and perform delivered by, and constitutes a valid and binding agreement of, such Stockholder's spouse, enforceable against such person in accordance with its material obligations hereunder (a “Stockholder Material Adverse Effect”)terms.
(gc) The executionExcept for filings under the HSR Act, delivery if applicable, (i) no filing with, and performance no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither the execution and delivery of this Agreement will not by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any of the provisions hereof shall (ix) conflict with or result in any breach of any applicable trust, partnership agreement or other agreements or organizational documents applicable to such Stockholder, (y) result in a violation or breach of, or default constitute (with or without notice or lapse of time, time or both) under, require consent under a default (or give rise to a any third party right of termination, cancellation cancellation, material modification or acceleration acceleration) under any of the terms, conditions or provisions of any obligation or the loss of any benefit under any (A) note, bond, mortgage, indenture, license, contract, trust, commitment, agreementarrangement, understanding understanding, agreement or arrangement other instrument or obligation of any kind (to which such Stockholder is a “Contract”) party or (B) permit, concession, franchise, right by which such Stockholder or license binding upon any of such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the 's properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, may be bound or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (iz) violate any provision of any order, writ, injunction, decree, judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder or any of such Stockholder's properties or assets.
(hd) Such Except for the shares of Company Common Stock owned by the Kleinknechts identified in Schedule II hereto (the "Pledged Shares"), such Stockholder’s Subject Securities 's Shares and the certificates representing such Shares are now, now and at all times during the term hereof will be, be held by such Stockholder Stockholder, or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for (i) any such Encumbrances encumbrances or proxies arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(je) No broker, investment bankbanker, financial advisor adviser or other person is entitled to any broker’s's, finder’s's, financial adviser’s 's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder in his or her capacity as such.
(f) Such Stockholder understands and acknowledges that Merger Subsidiary is entering into the Merger Agreement in reliance upon such Stockholder's execution and delivery of this Agreement with Merger Subsidiary.
Appears in 3 contracts
Sources: Stockholders Agreement (Cable Systems Holding LLC), Stockholders Agreement (Cable Systems Holding LLC), Stockholders Agreement (Ipc Information Systems Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital Parent and Purchaser in respect of himself or itself as follows:
(a) Such The Stockholder is the record beneficial owner of, and has good and marketable title to, the number of the equity securities and/or any debt or similar securities that are convertible into equity securities shares of the Company Common Stock set forth opposite the Stockholder's name of such Stockholder on Schedule I in SCHEDULE A hereto (as may be adjusted from time to this Agreement. As of the date of this Agreementtime pursuant to Section 5, the equity securities and/or Stockholder's "Shares"). Except for the Stockholder's Shares and any debt other shares of Common Company Stock subject hereto, the Stockholder is not the record or similar securities that are convertible into equity securities beneficial owner of any shares of capital stock of the Company set forth opposite other than shares issuable upon the name exercise of such Stockholder on Schedule I options and Shares otherwise subject to this Agreement represent all of due to their ownership by other Stockholders party hereto. The Stockholder has the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by sole right to vote such Stockholder's Shares, and none of such Stockholder's Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of such Stockholder's Shares, except as contemplated by this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by the Stockholder and constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity. Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will result in a violation of, or a default under, or conflict with, any contract, trust, commitment, agreement, understanding, arrangement or restriction of any kind to which the Stockholder is a party or bound or to which the Stockholder's Shares are subject. Except for filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, consummation by the Stockholder of the transactions contemplated hereby will not violate, or require any consent, approval, or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to the Stockholder or the Stockholder's Shares. If the Stockholder is a corporation, partnership, limited liability company married and the Stockholder's Shares constitute community property or otherwise need spousal or other entityapproval to be legal, such Stockholder is an entity duly organized, validly existing valid and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entitybinding, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreementby, assuming it and constitutes a valid and binding obligation of First Capitalagreement of, constitutes a valid and binding obligation of the Stockholder's spouse, enforceable against such Stockholder spouse in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium and other laws of general application affecting enforcement of creditors’ ' rights generally.
(f) The execution, delivery and performance by . No trust of which such Stockholder is a trustee requires the consent of any beneficiary to the execution and delivery of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or hereby. Each Stockholder hereby grants to Parent an irrevocable proxy with full power of substitution and resubstitution which shall be deemed coupled with an interest to vote such Stockholder’s ability to observe 's Shares as contemplated by Sections 3(c) and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”)4 hereof.
(gc) The execution, delivery Stockholder's Shares and performance the certificates representing such Shares are now and at all times during the term hereof will be held by such Stockholder of this Agreement will not (i) result in a violation ofthe Stockholder, or default (with by a nominee or without notice or lapse custodian for the benefit of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation free and clear of any pledges, all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance encumbrances whatsoever, except for any such encumbrances or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of proxies arising hereunder and except for such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) liens and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement encumbrances that will not (i) violate any provision of any judgment, order interfere with the Stockholder's ability to perform his or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholderits obligations hereunder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(jd) No broker, investment bankbanker, financial advisor adviser or other person is entitled to any broker’s's, finder’s's, financial adviser’s 's or other similar fee or commission from Parent, Purchaser or the Company in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such the Stockholder in his individual capacity.
(e) The Stockholder understands and acknowledges that Parent is entering into, and causing Purchaser to enter into, the Merger Agreement in reliance upon the Stockholder's execution and delivery of this Agreement.
Appears in 3 contracts
Sources: Stockholders Agreement (International Paper Co /New/), Stockholders Agreement (International Paper Co /New/), Stockholders Agreement (Shorewood Packaging Corp)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital Radiancy as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First CapitalRadiancy, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement Merger or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution AgreementSection 2(c) hereof.
(i) Such Stockholder understands and acknowledges that First Capital Radiancy is entering into the Contribution Merger Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 3 contracts
Sources: Voting Support, Lock Up and Confidentiality Agreement, Voting Support, Lock Up and Confidentiality Agreement (Photomedex Inc), Shareholder Lock Up and Confidentiality Agreement (Photomedex Inc)
Representations and Warranties of Stockholders. Each ---------------------------------------------- Stockholder on its own behalf hereby represents and warrants to First Capital Parent and Acquisition Sub as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity partnership duly organized, validly existing and in good standing under the laws of its jurisdiction, and the jurisdiction under which it is organized.
(b) Such Stockholder has all requisite organizational necessary partnership power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the .
(c) The execution, delivery and performance of this Agreement.
(c) If Agreement and the Stockholder is an individualconsummation of the transactions contemplated hereby have been duly and validly authorized by such Stockholder, and no other partnership proceedings on the part of such Stockholder has the valid capacity are necessary to execute and deliver authorize this Agreement and has duly executed and delivered this Agreementor to consummate the transactions so contemplated.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it this Agreement constitutes a valid and binding obligation of First Capitaleach of Parent and Acquisition Sub, constitutes a legal, valid and binding obligation agreement of the Stockholder, such Stockholder enforceable against such Stockholder in accordance with its terms, except as limited by that (i) such enforcement may be subject to applicable bankruptcy, insolvencyinsolvency or other similar laws, reorganizationnow or hereafter in effect, moratoriumaffecting creditors' rights generally, fraudulent conveyance and (ii) the remedy of specific performance and injunctive and other laws forms of general application affecting enforcement equitable relief may be subject to equitable defenses and to the discretion of creditors’ rights generallythe court before which any proceeding therefor may be brought.
(e) The execution, delivery and performance by such Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) contravene or conflict with its partnership agreement or certificate of limited partnership, (ii) assuming that all consents, authorizations and approvals contemplated by subsection (f) below have been obtained and all filings described therein have been made, contravene or conflict with or constitute a violation of any provision of any law, regulation, judgment, injunction, order or decree binding upon or applicable to such Stockholder or any of its properties; (iii) conflict with, or result in the breach or termination of or constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation, or loss of any benefit to which such Stockholder is entitled under any provision of any agreement, contract, license or other instrument binding upon such Stockholder or any of its properties, or allow the acceleration of the performance of any obligation of such Stockholder under any indenture, mortgage, deed of trust, lease, license, contract, instrument or other agreement to which such Stockholder is a party or by which such Stockholder its assets or properties is subject or bound; or (iv) result in the creation or imposition of any Lien on any asset of such Stockholder, except in the case of clauses (ii), (iii) and (iv) for any such contraventions, conflicts, violations, breaches, terminations, defaults, cancellations, losses, accelerations and Liens which would not individually or in the aggregate be reasonably expected to prevent, materially delay or materially impair the consummation by such Stockholder of the transactions contemplated by this Agreement.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not and the consummation of the transactions contemplated hereby by such Stockholder require any consentno filings, approvalnotices, authorization or permit ofdeclarations, action by, filing with or notification to any governmental authority consents or other third partyactions to be made by such Stockholder with, nor are any approvals or other than confirmations or consents required to be obtained by such Stockholder from any consent, approval, authorization, permit, action, filing or notification Governmental Entity (except those the failure of which to make make, give or obtain would notobtain, individually or in the aggregate, would not reasonably be reasonably expected to prevent or materially delay such Stockholder's ability to consummate the transactions contemplated hereby), other than filings, notices, approvals, confirmations, consents, declarations or decisions (i) required by the HSR Act; (ii) required by the Exchange Act and state securities, takeover and Blue Sky laws; (iii) required by the Canadian Competition Act; (iv) from the Italian Autorita Garante della Concorrenza e del Mercato that it does not intend to initiate a second stage investigation of the transactions contemplated hereby (including the Merger) or any matters arising therefrom under Article 16 of Law no.287 of October 10, 1990; (v) from the German Federal Cartel Office, during the one month time limit referred to in Section 40 paragraph 1 of the Act against Restraints on Competition, that the conditions for a prohibition in Section 36 paragraph 1 of the Act against Restraints on Competition are not fulfilled, or, if no such confirmation is received, this one month time limit having expired without the parties having been notified by the Federal Cartel Office that it has entered into the examination of the proposed concentration; and (vi) from the U.K. Office of Fair Trading that it is not the intention of the U.K. Secretary of State to refer the transactions contemplated hereby or any matters arising therefrom to the MMC (clauses (i) through (vi) are referred to herein as the "Stockholder Governmental Approvals"). ----------------------------------
(g) As of the date hereof, there is no action, suit, claim, investigation or proceeding pending against, or to the knowledge of such Stockholder, threatened against any Stockholder or properties before any court or arbitrator or any administrative, regulatory or governmental body, or any agency or official which challenges or seeks to prevent, enjoin, alter or delay the Offer or the Merger or any of the other transactions contemplated hereby or by the Merger Agreement. As of the date hereof, such Stockholder is not and none of its properties is subject to any order, writ, judgment, injunction, decree, determination or award which would prevent or delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”)hereby.
(gh) The executionSuch Stockholder has, delivery and performance by at any Closing (as defined below) hereunder such Stockholder of this Agreement will not (i) result in a violation have, good and valid title to such Stockholder's Shares, free and clear of, or default (with or without notice or lapse of timeexcept as set forth in Schedule 2(1), or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interestsLiens, proxies, voting trusts or agreements, optionsunderstandings or arrangements, except for any Liens or proxies arising hereunder.
(i) Except as set forth in Schedule 2(1), there are no options or rights (to acquire, or any agreements to which such Stockholder is a party relating to such Stockholder's Shares, other than community property interests)this Agreement.
(j) The transfer of such Stockholder's Shares hereunder will transfer to Acquisition Sub good and valid title to such Stockholder's Shares, free and clear of any Liens, proxies, voting trusts or agreements, understandings or arrangements arrangements, except for any Liens or any other encumbrance or restriction whatsoever on title transfer proxies arising hereunder.
(collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any k) Such Stockholders' Shares described in Schedule A represent all of the properties or assets Shares beneficially owned (within the meaning of such Stockholder, (iiiRule 13d-3 under the Exchange Act) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(hl) Such Stockholder’s Subject Securities are nowSchedule 2(1) sets forth a complete and correct list of all contracts, agreements and commitments (oral or written), together with a description of monetary obligations thereof, between the Company or any of its subsidiaries, on the one hand, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and on the other parties thereto in accordance with the Contribution Agreementhand.
(im) Such Stockholder is not a "foreign person" as defined in Section 1445(f)(3) of the Code.
(n) Such Stockholder understands and acknowledges that First Capital Parent is entering into into, and causing Acquisition Sub to enter into, the Contribution Merger Agreement in reliance upon such Stockholder’s 's execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 3 contracts
Sources: Stockholder Agreement (Gec Acquisition Corp), Stockholder Agreement (Gec Acquisition Corp), Stockholder Agreement (Reltec Corp)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf Stockholder, as to itself (severally and not jointly), hereby represents and warrants warrants, to First Capital the best of its knowledge, to Paramount as follows:
(a) Schedule A lists all Shares owned of record or beneficially by such Stockholder, designating any such Shares that are restricted or otherwise subject to vesting requirements. Schedule A lists all options, warrants and other securities convertible into or exercisable or exchangeable for Shares owned of record or beneficially by such Stockholder. Except as set forth on Schedule A, such Stockholder does not own of record or beneficially any voting securities in the Company or any securities convertible into or exercisable or exchangeable for any such voting securities. Such Stockholder does not own of record any Shares which are beneficially owned by a third Person.
(b) Such Stockholder is the record or beneficial owner of the equity securities and/or any debt or similar securities that are convertible into equity securities all Covered Shares of such Stockholder. Such Stockholder has sole voting power, sole power of disposition and sole power to agree to all of the Company matters set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of in this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name in each case with respect to all of such Covered Shares, with no limitations, qualifications or restrictions on such rights. Such Covered Shares are not subject to any voting trust agreement or other Contract to which such Stockholder on Schedule I is a party restricting or otherwise relating to the voting or Transfer (as defined below) of such Covered Shares. Such Stockholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to such Covered Shares, except as contemplated by this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such StockholderAgreement.
(bc) If the Stockholder is a corporation, partnership, limited liability company or other entity, Each such Stockholder which is an entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, organization and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform its obligations hereunder; each such Stockholder who is a natural person has the valid full legal power and capacity to execute and deliver this Agreement and has to perform such Stockholder’s obligations hereunder. The execution, delivery and performance of this Agreement by each such Stockholder which is an entity, the performance by such Stockholder of its obligations hereunder have been duly executed and delivered validly authorized by such Stockholder and no other actions or proceedings on the part of such Stockholder are necessary to authorize the execution and delivery by such Stockholder of this Agreement.
(d) If , the performance by such Stockholder is of its obligations hereunder on a corporation, partnership, limited liability company or other entity, this timely basis. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it due authorization, execution and delivery by Paramount, constitutes a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws of general application affecting enforcement of creditors’ rights generallygenerally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). If such Stockholder is married, and any of the Covered Shares of such Stockholder constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly and validly executed and delivered by such Stockholder’s spouse and, assuming due authorization, execution and delivery by Paramount, constitutes a legal, valid and binding obligation of such Stockholder’s spouse, enforceable against such Stockholder’s spouse in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(fd) The Except for the applicable requirements of the U.S. Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Entity is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder and (ii) neither the execution, delivery or performance of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder nor compliance by such Stockholder with any of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any provisions hereof shall (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of violate, any provision of the organizational documents of any such StockholderStockholder which is an entity, (B) result in any breach or violation of, or constitute a default (ivor an event which, with notice or lapse of time or both, would become a default) conflict with under, or violate give to others any applicable lawsrights of termination, other thanamendment, acceleration or cancellation of, or result in the case creation of clauses (i), (ii) and (iv), as would not, individually a Lien on any property or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by asset of such Stockholder pursuant to, any contract to which such Stockholder is a party or by which such Stockholder or any property or asset of the transactions contemplated by this Agreement will not such Stockholder is bound or affected or (iC) violate any provision of any judgmentorder, order or decree applicable to such Stockholder or (ii) require any consentwrit, approvalinjunction, or notice under any decree, statute, law, rule or regulation applicable to such Stockholder or any of such Stockholder’s properties or assets except, in the case of clause (B) or (C), for breaches, violations or defaults that would not, individually or in the aggregate, materially impair the ability of such Stockholder to perform its obligations hereunder on a timely basis.
(he) Such Stockholder’s Subject Securities are nowThere is no action, and at all times during the term hereof will besuit, held by claim, arbitration, investigation, complaint, inquiry or other proceeding pending against any such Stockholder or by a nominee or custodian for or, to the benefit knowledge of such Stockholder, free and clear any other Person or, to the knowledge of all Encumbrancessuch Stockholder, except for threatened against any Stockholder or any other Person that restricts or prohibits (ior, if successful, would restrict or prohibit) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed the exercise by Paramount of its rights under this Agreement or the performance by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control party of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of its obligations under this Agreement on a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreementtimely basis.
(if) Such Stockholder understands and acknowledges that First Capital is entering into Except as provided in the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Arrangement Agreement.
(j) No , no broker, investment bankfinder, financial advisor or other person investment banker is entitled to any broker’sbrokerage, finder’s, financial adviseradvisor’s or similar other fee or commission in connection with the transactions contemplated hereby by the Arrangement Agreement or this Agreement based upon arrangements made by or on behalf of such Stockholder.
(g) Such Stockholder understands and acknowledges that Paramount is entering into the Arrangement Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement and the representations and warranties and covenants of such Stockholder contained herein and would not enter into the Arrangement Agreement if such Stockholder did not enter into this Agreement.
Appears in 3 contracts
Sources: Voting and Support Agreement (Paramount Gold Nevada Corp.), Voting and Support Agreement (Paramount Gold Nevada Corp.), Voting and Support Agreement (Paramount Gold Nevada Corp.)
Representations and Warranties of Stockholders. Each Stockholder, severally as to such Stockholder on its own behalf hereby only and not jointly, represents and warrants to First Capital the Purchaser Parties as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder's obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Purchaser Parties against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(fb) The executionnumber of shares of Common Stock constituting Owned Common Stock of such Stockholder as of the date hereof, delivery and performance the number of votes which the holder of such Common Stock shall be entitled to cast in respect of any matter as to which holders of Common Stock are entitled to cast votes with a record date as of the date hereof, are set forth next to such Stockholder's name on Schedule A of this Agreement. Except as provided in this Agreement, such Stockholder has the power to vote all of such Stockholder's Owned Common Stock with respect to any of the matters set forth in clause (z) of Section 2.1 without the consent or approval of, or any other action on the part of, any other Person, and has not granted any proxy that is still effective or entered into any voting or similar agreement with respect to such Stockholder's Owned Common Stock which is inconsistent with this Agreement. The Owned Common Stock set forth next to such Stockholder's name on Schedule A hereto constitutes all of the capital stock of the Company that such Stockholder has the right to vote as of the date hereof, and, except for the shares of Common Stock shown as Beneficially Owned by such Stockholder on Schedule A of this Agreement, as of the date hereof such Stockholder and such Stockholder's Affiliates do not Beneficially Own or have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Common Stock or any securities convertible into Common Stock (including stock options).
(c) Other than the filing by such Stockholder of any reports with the SEC required by Section 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the actions contemplated hereby or compliance by such Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of, any organizational document or material Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder's properties or assets of (including such Stockholder's Owned Common Stock) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder's properties or assets (including such Stockholder's Owned Common Stock), or (iv) conflict with results in a Lien upon any of such Stockholder's properties or violate any applicable laws, other thanassets (including such Stockholder's Owned Common Stock), in each case where the case failure to obtain such consent or Permit or make such filing or notification, or which violation, breach or default, or which Lien, would have the effect of clauses (i)impeding, (ii) and (iv)interfering with, as would not, individually or in adversely affecting the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation performance by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice its obligations under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 3 contracts
Sources: Voting Agreement (Admiral Byrd Acquisition Sub, Inc.), Voting Agreement (Avx Corp), Voting Agreement (American Technical Ceramics Corp)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants warrants, severally and not jointly, to First Capital the Company as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I has the legal capacity to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to execute and deliver this Agreement represent all of and to consummate the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.transactions contemplated hereby;
(b) If in the case of any Stockholder that is a corporation, partnership, limited partnership or limited liability company or other entitycompany, such Stockholder is an entity duly organized, organized and validly existing and in good standing under the laws of its jurisdictionthe jurisdiction in which it is incorporated or constituted, and each such Stockholder has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational corporate action to authorize the execution, delivery and performance of this Agreement.;
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and constitutes the legal, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium and other laws of general application affecting enforcement of creditors’ ' rights generally., and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought;
(fd) The execution, neither the execution and delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay nor the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement hereby will not (i) result in a violation of, or a default (with or without notice or lapse of timeunder, or both) underconflict with, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding understanding, arrangement or arrangement restriction of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon to which such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company party or other entity, conflict with or result in any violation of any provision of the organizational documents of by which such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect's assets are bound. The consummation by such Stockholder of the transactions contemplated by this Agreement hereby will not (i) violate any provision of any judgmentviolate, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to such Stockholder.; and
(he) Such Stockholder’s such Stockholder acknowledges that the issuance of the Subject Securities are nowShares is expected to be effected pursuant to a registration statement on Form S-4, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit resale of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities Shares may be held (provided, that subject to the Stockholder retains voting and dispositional control of any restrictions set forth in Rule 145 under the Securities Act unless such Subject Securities); provided, that such Stockholder may Transfer such Subject Shares are otherwise transferred pursuant to an effective registration statement under the Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution AgreementAct or an appropriate exemption from registration.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants warrants, severally and not jointly, to First Capital the Company as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I has the legal capacity to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to execute and deliver this Agreement represent all of and to consummate the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.transactions contemplated hereby;
(b) If in the case of any Stockholder that is a corporation, partnership, limited partnership or limited liability company or other entitycompany, such Stockholder is an entity duly organized, organized and validly existing and in good standing under the laws of its jurisdictionthe jurisdiction in which it is incorporated or constituted, and each such Stockholder has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational corporate action to authorize the execution, delivery and performance of this Agreement.;
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and constitutes the legal, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium and other laws of general application affecting enforcement of creditors’ rights generally., and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought;
(fd) The execution, neither the execution and delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay nor the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement hereby will not (i) result in a violation of, or a default (with or without notice or lapse of timeunder, or both) underconflict with, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding understanding, arrangement or arrangement restriction of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon to which such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company party or other entity, conflict with or result in any violation of any provision of the organizational documents of by which such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect’s assets are bound. The consummation by such Stockholder of the transactions contemplated by this Agreement hereby will not (i) violate any provision of any judgmentviolate, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to such Stockholder.; and
(he) Such Stockholder’s such Stockholder acknowledges that the issuance of the Subject Securities are nowShares is expected to be effected pursuant to a registration statement on Form S-4, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit resale of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities Shares may be held (provided, that subject to the Stockholder retains voting and dispositional control of any restrictions set forth in Rule 145 under the Securities Act unless such Subject Securities); provided, that such Stockholder may Transfer such Subject Shares are otherwise transferred pursuant to an effective registration statement under the Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution AgreementAct or an appropriate exemption from registration.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Stockholders Agreement (Crystal Decisions Inc), Stockholders Agreement (Business Objects Sa)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf jointly and severally hereby represents and warrants and covenants to First Capital Parent as follows:
(a) Such Stockholder is the record or beneficial owner of the equity securities and/or any debt or similar securities that are convertible into equity Subject Shares; (b) the Subject Shares set forth on the signature page hereto constitute such Stockholder’s entire interest in the outstanding capital stock and voting securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As as of the date hereof; (c) the Subject Shares are, and will be, at all times up until the Expiration Date, free and clear of this Agreementany liens, the equity securities and/or claims, options, charges, security interests, proxies, voting trusts, agreements, rights, understandings or arrangements, or exercise of any debt or similar securities that are convertible into equity securities rights of a stockholder in respect of the Company set forth opposite the name of Subject Shares or other encumbrances; (d) such Stockholder on Schedule I has voting power and the power of disposition with respect to this Agreement represent all of the shares Subject Shares outstanding on the date hereof, and will have voting power and power of equity securities and/or any debt or similar securities that are convertible into equity securities disposition with respect to all of the Company owned of record Subject Shares acquired by such Stockholder after the date hereof; and (e) such Stockholder’s principal residence or place of business is accurately set forth on the signature page hereto.
(b) If the 5.2. Such Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational full power and authority legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby, comply with and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a the valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance . The execution and other laws delivery of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance this Agreement by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in and the aggregate, be reasonably expected to prevent or materially delay the consummation performance of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The executionwill not, delivery and performance by such Stockholder of this Agreement will not (i) result in any breach of or constitute a violation of, or default (or an event that with or without notice or lapse of time, time or bothboth would become a default) under, require consent under or give rise to a others any right of terminationto terminate, cancellation amend, accelerate or acceleration of cancel any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholderobligation under, (ii) or result in the creation of any pledgeslien or encumbrance on any Subject Shares pursuant to, liensany note, claimsbond, security interestsmortgage, proxiesindenture, voting trusts contract, agreement, lease, license, permit, franchise or agreements, options, rights (other than community property interests), understandings instrument or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of obligation to which such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company party or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to which such Stockholder or (ii) require any consent, approval, the Subject Shares are or notice under any statute, law, rule will be bound or regulation applicable to such Stockholderaffected.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) 5.3. Such Stockholder understands and acknowledges agrees that First Capital is entering into if such Stockholder attempts to Transfer, vote or provide any other person with the Contribution Agreement authority to vote any of the Subject Shares other than in reliance upon Stockholder’s execution compliance with this Agreement, the Company shall not, and delivery such Stockholder hereby unconditionally and irrevocably instructs the Company to not, (a) permit any such Transfer on its books and records, (b) issue a new certificate representing any of the Subject Shares or (c) record such vote unless and until such Stockholder shall have complied with the terms of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Voting Agreement (Netmanage Inc), Voting Agreement (Micro Focus (US), Inc.)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital PhotoMedex, Inc. as follows:
(a) Such Stockholder is the record and beneficial owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned (beneficially or of record record) by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First CapitalPhotoMedex, Inc., constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement Merger or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities)Encumbrances; provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution AgreementSection 2(c) hereof.
(i) Such Stockholder understands and acknowledges that First Capital PhotoMedex, Inc. is entering into the Contribution Merger Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Shareholder Lock Up and Confidentiality Agreement (Photomedex Inc), Shareholder Lock Up and Confidentiality Agreement (Photomedex Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf Stockholder, as to itself (severally and not jointly), hereby represents and warrants to First Capital Parent as follows:
(a) Such Stockholder is the record legal owner of, and has good and valid title to, the Covered Shares, free and clear of any pledges, claims, liens, charges, options, rights of first refusal, encumbrances or security interests of any kind or nature whatsoever (including any limitation on voting, sale, transfer or other disposition or exercise of any other attribute of ownership) (collectively, “Liens”) other than as created by this Agreement, applicable federal securities laws and the Stockholder’s Organizational Documents. Such Stockholder holds sole voting power, sole power of disposition, sole power to demand appraisal rights and sole power to agree to all of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company matters set forth opposite the name in this Agreement, in each case with respect to all of such Stockholder Covered Shares, with no limitations, qualifications or restrictions on Schedule I such rights, subject to applicable federal securities laws and the terms of this Agreement. As of the date hereof, other than the Owned Shares, such Stockholder and its Affiliates do not own beneficially or of this Agreementrecord any (i) Company Shares or other voting securities of the Company, the equity securities and/or any debt or similar securities that are convertible into equity (ii) securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity or exchangeable for Company Shares or other voting securities of the Company owned or (iii) options or other rights to acquire from the Company any Company Shares, other voting securities or securities convertible into or exchangeable for Company Shares or other voting securities of record by such Stockholderthe Company.
(b) If the Each such Stockholder is a corporationlimited partnership or company, partnershipas applicable, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, formation and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the perform its obligations hereunder. The execution, delivery and performance of this Agreement.
(c) If Agreement by each such Stockholder, the Stockholder is an individual, performance by such Stockholder has of its obligations hereunder and the valid capacity consummation by such Stockholder of the transactions contemplated hereby have been duly and validly authorized by such Stockholder and no other actions or proceedings on the part of such Stockholder are necessary to execute authorize the execution and deliver this Agreement and has duly executed and delivered delivery by such Stockholder of this Agreement.
(d) If , the performance by such Stockholder is a corporation, partnership, limited liability company of its obligations hereunder or other entity, this the consummation by such Stockholder of the transactions contemplated hereby. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it due authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws of general application affecting enforcement of creditors’ rights generallygenerally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(fc) The Except for the applicable requirements of the Exchange Act (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder or the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither the execution, delivery or performance of this Agreement does not require by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any consentof the provisions hereof shall (A) conflict with or violate, approvalany provision of the Organizational Documents of any such Stockholder, authorization (B) result in any breach or permit violation of, action byor constitute a default (or an event which, filing with notice or notification lapse of time or both, would become a default) under, or give to others any governmental authority rights of termination, amendment, acceleration or other third partycancellation of, other than or result in the creation of a Lien on such property or asset of such Stockholder pursuant to, any consentContract to which such Stockholder is a party or by which such Stockholder or any property or asset of such Stockholder is bound or affected or (C) violate any order, approvalwrit, authorizationinjunction, permitdecree, actionstatute, filing rule or notification regulation applicable to such Stockholder or any of such Stockholder’s properties or assets, except, in the failure case of which to make clause (B) or obtain (C), for breaches, violations or defaults that would not, individually or in the aggregate, be reasonably expected materially impair the ability of such Stockholder to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”)hereunder.
(gd) The executionThere is no action, delivery and performance by suit, investigation, complaint or other proceeding pending against any such Stockholder of this Agreement will not (i) result in a violation ofor, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets knowledge of such Stockholder, (iii) If any other Person or, to the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents knowledge of such Stockholder, threatened against any Stockholder or any other Person that restricts or prohibits (ivor, if successful, would restrict or prohibit) conflict with or violate any applicable laws, other than, in the case exercise by Parent of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by its rights under this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed performance by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control party of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of its obligations under this Agreement.
(je) No Except as provided in the Merger Agreement or the Company Disclosure Letter, no broker, finder or investment bank, financial advisor or other person banker is entitled to any broker’sbrokerage, finder’s, financial adviser’s or similar other fee or commission for which the Company or its Subsidiaries would be liable or responsible following the Closing in connection with the transactions contemplated hereby by the Merger Agreement or this Agreement based upon arrangements made by or on behalf of such Stockholder.
(f) Such Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement and the representations and warranties of such Stockholder contained herein.
Appears in 2 contracts
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Purchaser Parties as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Purchaser Parties against such Stockholder in accordance with its terms.
(b) The number of Shares of Company Common Stock constituting Owned Shares of such Stockholder as of the date hereof, and the number of votes which the holder of such Shares shall be entitled to cast in respect of any matter as to which holders of Shares are entitled to cast votes, are set forth next to such Stockholder’s name on Schedule A of this Agreement. Such Stockholder is the record and Beneficial Owner of, and has good, valid and marketable title, free and clear of any Liens (other than those arising under this Agreement) to, the Owned Shares, and, except as limited provided in this Agreement, has the power to dispose of and vote all of such Stockholder’s Owned Shares without the consent or approval of, or any other action on the part of, any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such Stockholder’s Owned Shares. The Owned Shares set forth next to such Stockholder’s name on Schedule A hereto constitute all of the capital stock of the Company that is Beneficially Owned by applicable bankruptcysuch Stockholder as of the date hereof, insolvencyand, reorganizationexcept for such Stockholder’s Owned Shares and the Owned Shares owned by the other Stockholders who are parties to this Agreement, moratoriumsuch Stockholder and such Stockholder’s Affiliates do not Beneficially Own or have any right to acquire (whether currently, fraudulent conveyance and other laws upon lapse of general application affecting enforcement time, following the satisfaction of creditors’ rights generallyany conditions, upon the occurrence of any event or any combination of the foregoing) any Shares or any securities convertible into Shares (including Stock Options).
(fc) The executionOther than the filing by a Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery and performance by such Stockholder of this Agreement does not require by a Stockholder, the consummation by a Stockholder of the actions contemplated hereby or compliance by a Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of, any organizational document or material Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for ’s properties or assets (i) any including such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this AgreementOwned Shares).
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Voting Agreement (Hoehn Saric Ruldolf Christopher), Voting Agreement (Educate Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital Parent as follows:
: (a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I has beneficial ownership of, and is entitled to this Agreement. As of the date of vote in accordance with such Stockholder’s commitments under this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities number of the Company Common Shares set forth opposite the his or her name of such Stockholder on Schedule I 1 hereto and, except for Company Options that will be converted into Option Consideration pursuant to this Agreement represent all the terms of the shares of equity securities and/or Merger Agreement, does not own or have any debt or similar securities that are convertible into equity securities of the right to acquire any Company owned of record by such Stockholder.
Common Shares not listed on Schedule 1; (b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organizedhas the right, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute execute, deliver and deliver perform under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement; such execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation ofviolate, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule provision of law or regulation applicable result in the breach of any outstanding agreements or instruments to which such Stockholder.
(h) Such Stockholder’s Subject Securities are now, Stockholder is a party or is subject; and at all times during the term hereof will be, held this Agreement has been duly executed and delivered by such Stockholder or and constitutes a legal, valid and binding agreement of such Stockholder, enforceable in accordance with its terms; (c) such Stockholder’s Company Common Shares listed as owned on Schedule 1 hereto are now and, until the termination of this Agreement, will remain owned by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesvoting trusts, except for voting agreements, proxies, liens, claims, liabilities, security interests, marital property rights or any other encumbrances whatsoever (other than (i) any such Encumbrances arising hereunder, pledges for loans entered into in the ordinary course and (ii) Permitted Encumbrances rights of Parent and encumbrances respecting such Company Common Shares created pursuant to this Agreement or the Merger Agreement); and (iiid) any Encumbrance imposed other than this Agreement and the Merger Agreement, there are no outstanding options, warrants or rights to purchase or acquire, or agreements related to, such Stockholder’s Company Common Shares. Notwithstanding this representation, no Stockholder shall be prevented by any margin account this Agreement from the following transfers of Company Common Shares: (w) transfers by will or by operation of law (in with which case this Agreement shall bind the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securitiestransferee); provided(x) transfers for estate and tax planning purposes, that such Stockholder may Transfer such Subject Securities subject in accordance with each case to the provisions of a separate lock-up agreement being entered into between such Stockholder and transferee agreeing in writing to be bound by the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery terms of this Agreement.
; (jy) No brokerwith the prior written consent of Parent (which consent shall not be unreasonably withheld), investment bankfor any sales, financial advisor assignments, transfers or other person is entitled to any broker’s, finder’s, financial adviser’s dispositions necessitated by hardship; or similar fee or commission (z) as Parent may otherwise agree in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholderwriting.
Appears in 2 contracts
Sources: Merger Agreement (First Mid Illinois Bancshares Inc), Merger Agreement (First Mid Illinois Bancshares Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants warrants, severally with respect to First Capital itself/and not jointly, to Parent and Purchaser the following as followsof the date hereof and the Closing:
2.1 Title to the Subject Warrants, etc. Stockholder is the owner (both beneficially and of record) of the Subject Warrants. Except for (a) Such the Subject Warrants, (b) the shares of Common Stock and Preferred Stock set forth on Schedule 1 hereto (together with any shares of Common Stock or Preferred Stock hereafter acquired of record or beneficially by Stockholder, the "Voting Shares") and (c) the securities to be purchased from the Company pursuant to the Exchange Agreement, Stockholder is not the record or beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of, and does not have any other rights of any nature to acquire any additional shares of, any capital stock of the equity Company. Except, (i) to the extent resulting from the Exchange Agreement or (ii) for restrictions imposed by applicable securities and/or any debt laws or similar securities that are convertible into equity securities the express terms of the Warrant Agreement, dated as of June 29, 1999, among the Company set forth opposite and the name holders named therein (the "Warrant Agreement"), Stockholder owns all of such Stockholder on Schedule I its Subject Warrants and the Voting Shares free and clear of all Liens and, except pursuant to this Agreement. As of the date provisions of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity not appointed or granted any proxy, which appointment or grant is still effective, with respect to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets Voting Shares. Stockholder has sole power of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict disposition with or result in any violation respect to all of any provision its Subject Warrants and Voting Shares and has sole voting power of the organizational documents of such Stockholder, or (iv) conflict Voting Shares with or violate any applicable laws, other than, respect to the matters set forth in Section 5 hereof. Upon the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder purchase of the transactions contemplated by this Agreement Subject Warrants pursuant to Section 1, Purchaser will not (i) violate any provision of any judgment, order or decree applicable receive good and valid title to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s the Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such StockholderWarrants, free and clear of all EncumbrancesLiens, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance restrictions imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreementapplicable securities laws.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 2 contracts
Sources: Equity Purchase and Voting Agreement (General Atlantic Partners LLC), Equity Purchase and Voting Agreement (Infogrames Entertainment Sa)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents The Stockholders, severally and warrants not jointly, represent and warrant to First Capital the Purchaser Parties as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Each Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder's obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Purchaser Parties against such Stockholder in accordance with its terms.
(b) The number of Shares of Company Common Stock constituting Owned Shares of each Stockholder as of the date hereof, and the number of votes which the holder of such Shares shall be entitled to cast in respect of any matter as to which holders of Shares are entitled to cast votes, are set forth next to such Stockholder's name on Schedule A of this Agreement. Such Stockholder is the record and Beneficial Owner and has good, valid and marketable title, free and clear of any Liens (other than those arising under this Agreement), of the Owned Shares, and, except as limited provided in this Agreement, has full and unrestricted power to dispose of and vote all of such Stockholder's Owned Shares without the consent or approval of, or any other action on the part of any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such Stockholder's Owned Shares. The Owned Shares set forth next to such Stockholder's name on Schedule A hereto constitute all of the capital stock of the Company that is Beneficially Owned by applicable bankruptcysuch Stockholder as of the date hereof, insolvencyand, reorganizationexcept for such Stockholder's Owned Shares and the Owned Shares owned by the other Stockholders who are parties to this Agreement, moratoriumsuch Stockholder and such Stockholder's Affiliates do not Beneficially Own or have any right to acquire (whether currently, fraudulent conveyance and other laws upon lapse of general application affecting enforcement time, following the satisfaction of creditors’ rights generallyany conditions, upon the occurrence of any event or any combination of the foregoing) any Shares or any securities convertible into Shares (including Company Stock Options).
(fc) The executionOther than the filing by a Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery and performance by such Stockholder of this Agreement does not require by a Stockholder, the consummation by a Stockholder of the transactions contemplated hereby or compliance by a Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder's properties or assets of (including such Stockholder's Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder's properties or assets (including such Stockholder's Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for 's properties or assets (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of including such Stockholder's Owned Shares).
Appears in 1 contract
Sources: Voting Agreement (Kinder Morgan Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby of the Stockholders represents and warrants to First Capital as follows:
Parent that (a) Such such Stockholder owns beneficially (as defined below) the number of shares of Common Stock set forth opposite such Stockholder's name on Exhibit A attached hereto (such shares of Common Stock, the "SUBJECT SHARES"), free and clear of all Liens or Restrictions and, except for this Agreement and the Merger Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Stockholder is a party relating to the record owner pledge, disposition or Voting (as defined in Section 2) of the equity securities and/or such Subject Shares and there are no Voting trusts or Voting agreements with respect to such Subject Shares, (b) such Stockholder does not beneficially own any debt shares of Common Stock other than such Stockholder's Subject Shares and does not have any options, warrants or similar securities that are convertible into equity securities other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company other than those options, warrants or other rights set forth opposite the such Stockholder's name of on Exhibit A hereto (such Stockholder's "OPTIONS") and each Stockholder represents and warrants that such Stockholder on Schedule I shall not exercise any such Options prior to the termination of this Agreement. As of the date Agreement except in accordance with Section 7 of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of (c) such Stockholder on Schedule I has not appointed or granted any proxy, which appointment or grant is still effective with respect to this Agreement represent all of the shares of equity securities and/or Subject Shares or any debt or similar securities that are convertible into equity securities of the Company owned of record by New Shares, (d) if such Stockholder.
(b) If the Stockholder is not a corporation, partnership, limited liability company or other entitynatural person, such Stockholder is an entity duly organized, incorporated or organized and validly existing under the laws of its jurisdiction of incorporation or organization and is duly authorized to do business and is in good standing under the laws of its jurisdictionjurisdiction of incorporation or organization and if such Stockholder is a natural person, and such Stockholder has all requisite organizational the capacity to enter into this Agreement, (e) such Stockholder has full power and authority to enter into, execute and deliver this Agreement and to consummate the transactions contemplated hereby, perform fully such Stockholder's obligations hereunder and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreementand constitutes the legal, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, such Stockholder enforceable against such Stockholder in accordance with its terms, terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws of general application affecting enforcement of creditors’ ' rights generally.
, or by principles governing the availability of equitable remedies), (f) The other than filings under the Exchange Act, no notices, reports or other filings are required to be made by such Stockholder with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by such Stockholder from, any Governmental Entity, in connection with the execution and delivery of this Agreement by such Stockholder, and (g) the execution, delivery and performance of this Agreement by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in and the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement hereby will not not, (i) violate violate, conflict with or constitute a breach of, or a default under, the certificate of incorporation or by-laws of such Stockholder or any provision or their comparable governing instruments (if such Stockholder is not a natural person), (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice or the passage of time or both) under any Contract to which such Stockholder is a party or by which any of its assets are bound, (iii) will not result in the creation of any judgmentLien on any of the assets of such Stockholder or (iv) result in a violation of, order under or pursuant to any law, rule, regulation, order, judgment or decree applicable to such Stockholder or (ii) require by which any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities of its assets are now, and at all times during bound. For the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery purposes of this Agreement.
, a Person "beneficially" owns a security if such Person, directly or indirectly, through any contract, arrangement, understanding or otherwise has (jA) No brokerthe power to vote, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with direct the transactions contemplated hereby based upon arrangements made by or on behalf vote of such Stockholdersecurity and (B) the power to dispose, or direct the disposition of such security.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital Mid as follows:
: (a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I has beneficial ownership of, and is entitled to this Agreement. As of the date of vote in accordance with such Stockholder’s commitments under this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities number of the Company Common Shares set forth opposite the his or her name of such Stockholder on Schedule I 1 hereto, and does not own or have any right to this Agreement represent all of the shares of equity securities and/or acquire any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
Common Shares not listed on Schedule 1; (b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organizedhas the right, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute execute, deliver and deliver perform under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement; such execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation ofviolate, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule provision of law or regulation applicable result in the breach of any outstanding agreements or instruments to which such Stockholder.
(h) Such Stockholder’s Subject Securities are now, Stockholder is a party or is subject; and at all times during the term hereof will be, held this Agreement has been duly executed and delivered by such Stockholder or and constitutes a legal, valid and binding agreement of such Stockholder, enforceable in accordance with its terms; (c) such Stockholder’s Company Common Shares listed as owned on Schedule 1 hereto are now and, until the termination of this Agreement, will remain owned by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesvoting trusts, except for voting agreements, proxies, liens, claims, liabilities, security interests, marital property rights or any other encumbrances whatsoever (other than (i) any such Encumbrances arising hereunder, pledges for loans entered into in the ordinary course and (ii) Permitted Encumbrances rights of First Mid and encumbrances respecting such Company Common Shares created pursuant to this Agreement or the Merger Agreement); and (iiid) any Encumbrance imposed other than this Agreement and the Merger Agreement, there are no outstanding options, warrants or rights to purchase or acquire, or agreements related to, such Stockholder’s Company Common Shares. Notwithstanding this representation, no Stockholder shall be prevented by any margin account this Agreement from the following transfers of Company Common Shares: (w) transfers by will or by operation of law (in with which case this Agreement shall bind the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securitiestransferee); provided(x) transfers for estate and tax planning purposes, that such Stockholder may Transfer such Subject Securities subject in accordance with each case to the provisions of a separate lock-up agreement being entered into between such Stockholder and transferee agreeing in writing to be bound by the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery terms of this Agreement.
; (jy) No brokerwith the prior written consent of First Mid (which consent shall not be unreasonably withheld), investment bankfor any sales, financial advisor assignments, transfers or other person is entitled to any broker’s, finder’s, financial adviser’s dispositions necessitated by hardship; or similar fee or commission (z) as First Mid may otherwise agree in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholderwriting.
Appears in 1 contract
Sources: Merger Agreement (First Mid Illinois Bancshares Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Company as of the date of this Agreement, as of the date of any Company Stockholders Meeting (and as of the date of any adjournment or postponement thereof) and as of the date of the execution of any written Stockholder consent or any proxy permitted under this Agreement or consented to by the Company, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of the Stockholder, such Stockholder enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(fb) Such Stockholder is the Beneficial Owner (unless such shareholder is a trust in which case the beneficiaries of each such trust are the Beneficial Owners), free and clear of any Liens (other than those arising under this Agreement, the Equity Rollover Commitments and Permitted Encumbrances) of the Owned Shares, which, as of the date hereof, are set forth below such Stockholder’s name on the signature page hereto and, except for Permitted Encumbrances and except as provided in this Agreement and the Equity Rollover Commitments has full and unrestricted power to dispose of and vote all of such Stockholder’s Owned Shares without the consent or approval of, or any other action on the part of, any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such Stockholder’s Owned Shares. The executionOwned Shares set forth below such Stockholder’s name on the signature page hereto constitute all of the capital stock of the Company that is Beneficially Owned by such Stockholder as of the date hereof, delivery and, except for such Stockholder’s Owned Shares and performance the Owned Shares owned by the other Stockholders who are parties to this Agreement and with respect to Jxxxx Xxxxx, approximately 7,000 shares held in his personal individual retirement account, such Stockholder and such Stockholder’s Affiliates do not Beneficially Own or have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any Shares or any securities convertible into Shares (including Stock Options).
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any consentof the provisions hereof (i) requires, approvalother than with respect to Permitted Encumbrances, authorization any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for ’s properties or assets (i) any including such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this AgreementOwned Shares).
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital BankFinancial as follows:
: (a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I owns, and is entitled to this Agreement. As of the date of vote in accordance with such Stockholder’s commitments under this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities number of the Company Common Shares set forth opposite the his or her name of such Stockholder on Schedule I 1 hereto, and does not own or have any right to this Agreement represent all of the shares of equity securities and/or acquire any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
Common Shares not listed on Schedule 1; (b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organizedhas the right, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute execute, deliver and deliver perform under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement; such execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation ofviolate, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule provision of law or regulation applicable result in the breach of any outstanding agreements or instruments to which such Stockholder.
(h) Such Stockholder’s Subject Securities are now, Stockholder is a party or is subject; and at all times during the term hereof will be, held this Agreement has been duly executed and delivered by such Stockholder or and constitutes a legal, valid and binding agreement of such Stockholder, enforceable in accordance with its terms; (c) except as set forth in the next sentence, such Stockholder’s Company Common Shares listed as owned on Schedule 1 hereto are now and will remain owned by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesvoting trusts, except for voting agreements, proxies, liens, claims, liabilities, security interests, marital property rights or any other encumbrances whatsoever (other than (i) any such Encumbrances arising hereunder, pledges for loans entered into in the ordinary course and (ii) Permitted Encumbrances rights of BankFinancial and encumbrances respecting such Company Common Shares created pursuant to this Agreement or the Merger Agreement); and (iiid) other than this Agreement and the Merger Agreement, there are no outstanding options, warrants or rights to purchase or acquire, or agreements related to, such Stockholder’s Company Common Shares. Notwithstanding anything contained in this Agreement to the contrary, at any Encumbrance imposed by any margin account in with time prior to the Subject Securities may Closing, each Stockholder shall be held (provided, that the Stockholder retains permitted to transfer ownership and voting and dispositional control rights of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf all of such Stockholder’s Company Common Shares listed as owned on Schedule 1 without obtaining BankFinancial’s prior consent or approval of such transfer, provided that any such transferee agrees to be bound by the terms, conditions and obligations of this Agreement in writing by an instrument or agreement satisfactory in form to BankFinancial.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants warrants, solely with respect to First Capital such Stockholder and such Stockholder's Shares, to Parent and Sub as follows:
(a) Such Stockholder (if not an individual) has been duly organized and is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing (in the jurisdictions that recognize the concept of good standing) under the laws of the jurisdiction of its jurisdictionincorporation or formation, and as the case may be.
(b) Such Stockholder has all the requisite organizational power and authority authority, corporate or otherwise, to execute and deliver this Agreement Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the .
(c) The execution, delivery and performance of this Agreement.
(c) If Agreement by such Stockholder and the consummation of the transactions contemplated hereby have been duly and validly authorized by such Stockholder, and no other proceedings, corporate or otherwise, on the part of such Stockholder are necessary to authorize this Agreement or to consummate the transactions so contemplated. Without limiting the generality of the foregoing, if such Stockholder is an individuala trustee, no trust of which such Stockholder has is a trustee requires the valid capacity consent of any beneficiary to execute the execution and deliver delivery of this Agreement and has duly executed and delivered this Agreementor to the consummation of the transactions contemplated hereby.
(d) This Agreement has been duly and validly executed and delivered by such Stockholder and, assuming this Agreement constitutes a valid and binding obligation of each of Parent and Sub, constitutes a legal, valid and binding agreement of such Stockholder enforceable against such Stockholder in accordance with its terms (subject to bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies). If the such Stockholder is a corporation, partnership, limited liability company married and such Stockholder's Shares constitute community property or the transfer thereof otherwise requires spousal or other entityapproval to be legal, valid and binding, this Agreement has been duly authorized, executed and delivered by by, and constitutes a valid and binding agreement of, such Stockholder's spouse, enforceable against such spouse in accordance with its terms (subject to bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies).
(e) This AgreementThe execution, delivery and performance by such Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) contravene or conflict with such Stockholder's (if not an individual) certificate of incorporation, bylaws or other organizational documents; (ii) assuming it constitutes that all consents, authorizations and approvals contemplated by subsection (f) below have been obtained and all filings described therein have been made, contravene or conflict with or constitute a valid and violation of any provision of any Law or Judgment binding upon or applicable to such Stockholder or such Stockholder's Shares; (iii) conflict with, or result in the breach or termination of or constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination or cancellation or any loss of any benefit to which such Stockholder is entitled under any provision of any Contract binding upon such Stockholder or any of its Subsidiaries (if not an individual), affiliates or properties, or allow the acceleration of the performance of any obligation of First Capitalsuch Stockholder under any Contract to which such Stockholder is a party or by which any of such Stockholder's Subsidiaries (if not an individual), constitutes a valid affiliates or properties is bound; or (iv) result in the creation or imposition of any Lien on any asset of such Stockholder, except in the case of clauses (ii), (iii) and binding obligation (iv) for any such contraventions, conflicts, violations, breaches, terminations, defaults, cancellations, losses, accelerations and Liens which would not individually or in the aggregate be reasonably expected to prevent, materially delay or materially impair the consummation by such Stockholder of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited transactions contemplated by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generallythis Agreement.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not and the consummation of the transactions contemplated hereby by such Stockholder require any consentno filings, approvalnotices, authorization or permit ofdeclarations, action by, filing with or notification to any governmental authority consents or other third partyactions to be made by such Stockholder with, nor are any approvals or other than confirmations or consents required to be obtained by such Stockholder from, any consent, approval, authorization, permit, action, filing or notification Governmental Entity (except those the failure of which to make make, give or obtain would notobtain, individually or in the aggregate, would not reasonably be reasonably expected to prevent, materially delay or materially impair such Stockholder's ability to consummate the transactions contemplated hereby), other than filings, notices, approvals, confirmations, consents, declarations or decisions (i) required by the HSR Act or any other applicable competition, merger control, antitrust or similar Law; (ii) required by Section 203 of the DGCL; and (iii) required by the Exchange Act in connection with this Agreement and the transactions contemplated hereby.
(g) As of the date hereof, there is no action, suit, claim, investigation or proceeding pending or, to the knowledge of such Stockholder, threatened against such Stockholder or any of its Subsidiaries (if not an individual), affiliates or properties before any Governmental Entity which challenges or seeks to prevent, enjoin, alter or delay the Offer or the Merger or any of the other transactions contemplated hereby or by the Merger Agreement. As of the date hereof, such Stockholder is not and none of its Subsidiaries (if not an individual), affiliates or properties is subject to any Judgment which could prevent or materially delay the consummation of the transactions contemplated hereby or by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”)Merger Agreement.
(gh) The executionSuch Stockholder has, delivery and performance by on the date Sub becomes obligated to accept for payment, and pay for, such Stockholder's Shares and at any Option Closing (as defined below) hereunder such Stockholder of this Agreement will not (i) result in a violation ofhave, or default (with or without notice or lapse of timegood and valid title to such Stockholder's Shares, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration free and clear of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interestsLiens, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesarrangements, except for (i) any such Encumbrances Liens or proxies arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such There are no options or rights to acquire, or any agreements to which such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon a party relating to, such Stockholder’s execution and delivery of 's Shares, other than this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf The transfer of such Stockholder's Shares hereunder will transfer to Sub good and valid title to such Stockholder's Shares, free and clear of any Liens, proxies, voting trusts or agreements, understandings or arrangements.
(k) As of the date hereof, such Stockholders' Shares described in Schedule A represent all of the shares of Company Common Stock beneficially owned (within the meaning of Rule 13d-3(a) under the Exchange Act) by such Stockholder.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf Stockholder, as to itself, hereby represents and warrants to First Capital Parent, as of the date of this Agreement and as of the record date for each meeting of stockholders of the Company occurring prior to the Termination Date, as follows:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other an entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, formation and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder; or, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individualif a natural person, such Stockholder has the valid full legal power and capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this to perform such Stockholder's obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it due authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance moratorium or similar laws affecting creditors' rights generally and other laws by general principles of general application affecting enforcement equity (regardless of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization whether considered in a proceeding in equity or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”at law).
(gb) The executionThere is no action, delivery and performance by suit, investigation, complaint or other proceeding pending against any such Stockholder of this Agreement will not (i) result in a violation ofor, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets knowledge of such Stockholder, (iii) If any other Person or, to the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents knowledge of such Stockholder, threatened against any Stockholder or any other Person that restricts or prohibits (ivor, if successful, would restrict or prohibit) conflict with or violate any applicable laws, other than, in the case exercise by Parent of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by its rights under this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed performance by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control party of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution its obligations under this Agreement.
(ic) Such Each Stockholder understands and acknowledges that First Capital Parent is entering into the Contribution Merger Agreement in reliance upon such Stockholder’s 's execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with Agreement and the transactions contemplated hereby based upon arrangements made by or on behalf representations and warranties of such StockholderStockholder contained herein. Such Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of his, her or its own choosing.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital the Parent as follows:
: (a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I has beneficial ownership of, and is entitled to this Agreement. As of the date of vote in accordance with such Stockholder’s commitments under this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities number of the Company Common Shares set forth opposite the his name of such Stockholder on Schedule I 1 hereto, and does not own or have any right to this Agreement represent all of the shares of equity securities and/or acquire any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
Common Shares not listed on Schedule 1; (b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organizedhas the right, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute execute, deliver and deliver perform under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement; such execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(f) The execution, delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation ofviolate, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule provision of law or regulation applicable result in the breach of any outstanding agreements or instruments to which such Stockholder.
(h) Such Stockholder’s Subject Securities are now, Stockholder is a party or is subject; and at all times during the term hereof will be, held this Agreement has been duly executed and delivered by such Stockholder or and constitutes a legal, valid and binding agreement of such Stockholder, enforceable in accordance with its terms; (c) such Stockholder’s Company Common Shares listed as owned on Schedule 1 hereto are now and, until the termination of this Agreement, will remain owned by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesvoting trusts, except for voting agreements, proxies, liens, claims, liabilities, security interests, marital property rights or any other encumbrances whatsoever (i) any other than rights of the Parent and encumbrances respecting such Encumbrances arising hereunder, (ii) Permitted Encumbrances Company Common Shares created pursuant to this Agreement or the Merger Agreement); and (iiid) any Encumbrance imposed other than this Agreement and the Merger Agreement, there are no outstanding options, warrants or rights to purchase or acquire, or agreements related to, such Stockholder’s Company Common Shares. Notwithstanding this representation, no Stockholder shall be prevented by any margin account this Agreement from the following transfers of Company Common Shares: (w) transfers by will or by operation of law (in with which case this Agreement shall bind the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securitiestransferee); provided(x) transfers for estate and tax planning purposes, that such Stockholder may Transfer such Subject Securities subject in accordance with each case to the provisions of a separate lock-up agreement being entered into between such Stockholder and transferee agreeing in writing to be bound by the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery terms of this Agreement.
; (jy) No brokerwith the prior written consent of the Parent (which consent shall not be unreasonably withheld), investment bankfor any sales, financial advisor assignments, transfers or other person is entitled to any broker’s, finder’s, financial adviser’s dispositions necessitated by hardship; or similar fee or commission (z) as the Parent may otherwise agree in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholderwriting.
Appears in 1 contract
Sources: Voting Agreement (Cynergistek, Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Identified Bondholders as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Identified Bondholders against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance subject to (i) the effects of bankruptcy and other similar laws of general application affecting enforcement of creditors’ rights generally, (ii) principles of equity and (iii) the implied covenant of good faith and fair dealing.
(fb) The executionSuch Stockholder is the record and Beneficial Owner and has good, delivery valid and performance marketable title, free and clear of any Liens (other than those arising under this Agreement), of the Class A Common Stock set forth next to such Stockholder’s name on Schedule A hereto, and, except as provided in this Agreement, has full and unrestricted power to dispose of and vote all of such shares of Class A Common Stock without the consent or approval of, or any other action on the part of any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such shares of Class A Common Stock. Except (i) with respect to shares of Class A Common Stock owned by Xxxxxx X. Xxxxxxx (the “Xxxxxxx Shares”) and (ii) 34,750 shares of Class A Common Stock Beneficially Owned by X.X. Xxxxxx Partners (23A SBIC), L.P. that are not listed on Schedule A (the “Excluded Shares”), the shares of Class A Common Stock set forth next to such Stockholder’s name on Schedule A hereto constitute all of the capital stock of the Company that is Beneficially Owned by such Stockholder as of the date hereof, and, except for such shares of Class A Common Stock, the Stockholder does not Beneficially Own or have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any shares of Class A Common Stock, Class B Common Stock or any securities convertible into Class A Common Stock or Class B Common Stock.
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Class A Common Stock or Class B Common Stock) may be bound, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in violates any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree law applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder’s properties or assets (including such Stockholder’s Class A Common Stock or Class B Common Stock), free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.or
(iiv) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement results in reliance a Lien upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder’s properties or assets (including such Stockholder’s Class A Common Stock or Class B Common Stock).
Appears in 1 contract
Sources: Lock Up and Voting Agreement (DiMaio Ahmad Capital LLC)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Company and Parent as followsof the date of this Agreement and at all times during the term of this Agreement, as follows as to itself only:
(a) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, Delaware limited partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and the State of Delaware. Such Stockholder has all requisite organizational full power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken perform its obligations hereunder. The execution and delivery of this Agreement by Stockholder and such Stockholder’s performance of its obligations hereunder have been duly authorized by all necessary organizational limited partnership action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of the Stockholder, such Stockholder enforceable against such Stockholder in accordance with its terms.
(b) The number of Shares of Company Common Stock constituting Owned Shares of BACI as of the date hereof is 821,568 Shares of Class A Common Stock and 4,959,916 Shares of Class B Common Stock. The number of Shares of Company Common Stock constituting Owned Shares of BACC as of the date hereof is 840,250 Shares of Class A Common Stock and 849,275 Shares of Class B Common Stock. Such Stockholder is the record and Beneficial Owner of, and has good, valid and marketable title to, free and clear of any Liens (other than those arising under this Agreement, the Shareholder Agreement and the Charter), its respective Owned Shares, and, except as limited provided in this Agreement, the Shareholder Agreement (with respect to BACI) and the Charter, has sole and unrestricted power to dispose of and vote all of such Stockholder’s Owned Shares without the consent or approval of, or any other action on the part of any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to such Stockholder’s Owned Shares. The only shares of capital stock of the Company Beneficially Owned by applicable bankruptcysuch Stockholder as of the date hereof is as set forth in the first sentence of this paragraph above, insolvencyand, reorganizationexcept for such Owned Shares, moratoriumsuch Stockholder does not Beneficially Own or have any right to acquire (whether currently, fraudulent conveyance upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any Shares or any securities convertible into Shares other than (i) shares issuable upon conversion of Class B Common Stock in accordance with the Charter and (ii) options held by BACC to purchase 305,000 shares of Class A Common Stock . There are no agreements or arrangements of any kind, contingent or otherwise, obligating Stockholder to Transfer or caused to be Transferred any of its Owned Shares and no Person has any contractual or other laws right or obligation to purchase or otherwise acquire any of general application affecting enforcement of creditors’ rights generallysuch Owned Shares.
(fc) The execution, delivery and performance Other than the filing by such Stockholder of any reports with the SEC required by Section 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any consentof the provisions hereof (i) requires any Governmental Authorization, approval, authorization or permit any consent of, action by, filing with or notification to to, any governmental authority or other third partyPerson, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for ’s properties or assets (i) any including such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.Owned Shares). S
Appears in 1 contract
Sources: Voting Agreement (Cumulus Media Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby hereby, severally and not jointly, represents and warrants to First Capital Purchaser as follows:
(ai) Such Stockholder is either (A) the record holder or beneficial owner of the equity securities and/or any debt number of, or similar securities (B) trustee of a trust that is the record holder or beneficial owner of, and whose beneficiaries are convertible into equity securities the beneficial owners (such trustee, a "Trustee"), shares of the Company Common Stock as is set forth opposite the such Stockholder's name of such Stockholder on Schedule I to this Agreement. As hereto (the "Existing Shares").
(ii) On the date hereof, the Existing Shares set forth opposite such Stockholder's name on Schedule I hereto constitute all of the date outstanding shares of Company Common Stock owned of record or beneficially by such Stockholder. Such Stockholder does not have record or beneficial ownership of any Shares not set forth on Schedule I hereto.
(iii) Such Stockholder has sole power of disposition with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I and sole voting power with respect to the matters set forth in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all of the Existing Shares set forth opposite such Stockholder's name on Schedule I, with no restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement.
(iv) Such Stockholder will have sole power of disposition with respect to Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder and will have sole voting power with respect to the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company matters set forth opposite the name of in Section 4 hereof and sole power to demand dissenter's or appraisal rights, in each case with respect to all Shares other than Existing Shares, if any, which become beneficially owned by such Stockholder with no restrictions on Schedule I such rights, subject to applicable federal securities laws and the terms of this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such StockholderAgreement.
(b) If Such Stockholder has the Stockholder is a corporationlegal capacity, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power and authority to execute enter into and deliver perform all of such Stockholder's obligations under this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the Agreement. The execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, Agreement by such Stockholder has the valid capacity will not violate any other agreement to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the which such Stockholder is a corporationparty or by which such Stockholder is bound including, partnershipwithout limitation, limited liability company any trust agreement, voting agreement, stockholders agreement, voting trust, partnership or other entity, this agreement. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and moratorium or other similar laws of general application affecting enforcement of creditors’ relating to creditor's rights generally.
, (fb) The executiongeneral principles of equity, whether such enforceability is considered in a proceeding in equity or at law, and to the discretion of the court before which any proceeding therefore may be brought, or (c) public policy considerations or court decisions which may limit the rights of the parties thereto for indemnification. All necessary consents of any beneficiary of or holder of interest in any trust of which a Stockholder is Trustee to the execution and delivery and performance by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay and the consummation of the transactions contemplated by the Contribution Agreement or hereby have been obtained. If such Stockholder is married and such Stockholder’s ability to observe 's Shares constitute community property, this Agreement has been duly authorized, executed and perform delivered by, and constitutes a valid and binding agreement of, such Stockholder's spouse, enforceable against such person in accordance with its material obligations hereunder (a “Stockholder Material Adverse Effect”)terms.
(gc) The executionExcept for filings under the HSR Act, delivery if applicable, (i) no filing with, and performance no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither the execution and delivery of this Agreement will not by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any of the provisions hereof shall (ix) conflict with or result in any breach of any applicable trust, partnership agreement or other agreements or organizational documents applicable to such Stockholder, (y) result in a violation or breach of, or default constitute (with or without notice or lapse of time, time or both) under, require consent under a default (or give rise to a any third party right of termination, cancellation cancellation, material modification or acceleration acceleration) under any of the terms, conditions or provisions of any obligation or the loss of any benefit under any (A) note, bond, mortgage, indenture, license, contract, trust, commitment, agreementarrangement, understanding understanding, agreement or arrangement other instrument or obligation of any kind (to which such Stockholder is a “Contract”) party or (B) permit, concession, franchise, right by which such Stockholder or license binding upon any of such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the 's properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, may 115 be bound or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (iz) violate any provision of any order, writ, injunction, decree, judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder or any of such Stockholder's properties or assets.
(hd) Such Except for the shares of Company Common Stock identified in Schedule II hereto (the "Pledged Shares"), such Stockholder’s Subject Securities 's Shares and the certificates representing such Shares are now, now and at all times during the term hereof will be, be held by such Stockholder Stockholder, or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrancesliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for (i) any such Encumbrances encumbrances or proxies arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(je) No broker, investment bankbanker, financial advisor adviser or other person is entitled to any broker’s's, finder’s's, financial adviser’s 's or other similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder in his or her capacity as such.
(f) Such Stockholder understands and acknowledges that Purchaser is entering into the Merger Agreement in reliance upon such Stockholder's execution and delivery of this Agreement with Purchaser.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby of the Stockholders represents and warrants to First Capital as follows:
the Parent Parties that (a) Such such Stockholder owns beneficially (as defined below) the number of shares of Common Stock set forth opposite such Stockholder's name on Exhibit A attached hereto (such shares of Common Stock, the "Subject Shares"), free and clear of all Liens or Restrictions and, except for this Agreement and the Merger Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Stockholder is a party relating to the record owner pledge, disposition or Voting (as defined in Section 2) of the equity securities and/or such Subject Shares and there are no Voting trusts or Voting agreements with respect to such Subject Shares, (b) such Stockholder does not beneficially own any debt shares of Common Stock other than such Stockholder's Subject Shares and does not have any options, warrants or similar securities that are convertible into equity securities other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company other than those options, warrants or other rights set forth opposite the such Stockholder's name of on Exhibit A hereto (such Stockholder's "Options") and each Stockholder represents and warrants that such Stockholder on Schedule I shall not exercise any such Options prior to the termination of this Agreement. As of the date Agreement except in accordance with Section 7 of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of (c) such Stockholder on Schedule I has not appointed or granted any proxy, which appointment or grant is still effective with respect to this Agreement represent all of the shares of equity securities and/or Subject Shares or any debt or similar securities that are convertible into equity securities of the Company owned of record by New Shares, (d) if such Stockholder.
(b) If the Stockholder is not a corporation, partnership, limited liability company or other entitynatural person, such Stockholder is an entity duly organized, incorporated or organized and validly existing under the laws of its jurisdiction of incorporation or organization and is duly authorized to do business and is in good standing under the laws of its jurisdictionjurisdiction of incorporation or organization and if such Stockholder is a natural person, and such Stockholder has all requisite organizational the capacity to enter into this Agreement, (e) such Stockholder has full power and authority to enter into, execute and deliver this Agreement and to consummate the transactions contemplated hereby, perform fully such Stockholder's obligations hereunder and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreementand constitutes the legal, assuming it constitutes a valid and binding obligation of First Capital, constitutes a valid and binding obligation of the Stockholder, such Stockholder enforceable against such Stockholder in accordance with its terms, terms (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws of general application affecting enforcement of creditors’ ' rights generally.
, or by principles governing the availability of equitable remedies), (f) The other than filings under the Exchange Act, no notices, reports or other filings are required to be made by such Stockholder with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by such Stockholder from, any Governmental Entity, in connection with the execution and delivery of this Agreement by such Stockholder, and (g) the execution, delivery and performance of this Agreement by such Stockholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in and the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement hereby will not not, (i) violate violate, conflict with or constitute a breach of, or a default under, the certificate of incorporation or by-laws of such Stockholder or any provision or their comparable governing instruments (if such Stockholder is not a natural person), (ii) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, modification or acceleration) (whether after the giving of notice or the passage of time or both) under any Contract to which such Stockholder is a party or by which any of its assets are bound, (iii) will not result in the creation of any judgmentLien on any of the assets of such Stockholder or (iv) result in a violation of, order under or pursuant to any law, rule, regulation, order, judgment or decree applicable to such Stockholder or (ii) require by which any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities of its assets are now, and at all times during bound. For the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery purposes of this Agreement.
, a Person "beneficially" owns a security if such Person, directly or indirectly, through any contract, arrangement, understanding or otherwise has (jA) No brokerthe power to vote, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with direct the transactions contemplated hereby based upon arrangements made by or on behalf vote of such Stockholdersecurity and (B) the power to dispose, or direct the disposition of such security.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents and warrants to First Capital as follows:
(a) Such Stockholder He, she or it is the record owner Beneficial Owner of the equity securities and/or any debt or similar securities that are convertible into equity securities number and class(es) of the Company Shares set forth opposite below Stockholder’s signature on the name signature page hereto (the “Owned Shares”), free from any lien, encumbrance, proxy, voting trust, voting agreement, voting restriction, understanding, right of such Stockholder first refusal, limitation on Schedule I to this Agreement. As disposition, adverse claim of the date of ownership, or restriction whatsoever, other than those created by this Agreement, or under applicable federal or state securities laws, or set forth in the equity securities and/or any debt or similar securities that are convertible into equity securities of Third Amended and Restated Investors’ Rights Agreement by and among the Company set forth opposite and the name persons listed on Exhibit A and Exhibit B thereto, dated effective October 19, 2007 (the “XXX”), and with full and sole power to vote the Owned Shares without the consent or approval of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.other Person;
(b) If Except for the Stockholder is a corporationOwned Shares, partnershiphe, limited liability company she or it does not Beneficially Own any other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, Shares or hold any securities convertible into or exchangeable for Shares and has all requisite organizational power and authority no other voting rights with respect to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.any such securities;
(c) If He, she or it is the Stockholder is an individual, such Stockholder has record holder of the valid capacity Owned Shares entitled to vote or to execute and deliver this Agreement and has duly executed and delivered this Agreement.written consents with respect to such Owned Shares;
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this This Agreement has been duly authorized, executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a the valid and legally binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as may be limited by applicable (x) the Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance the relief of debtors and other laws of general application affecting enforcement of creditors’ rights generally.in general, and (y) rules of Law governing specific performance, injunctive relief, other equitable remedies and other general principles of equity;
(e) The execution, delivery and performance of this Agreement by such Stockholder and the proxy contained herein does not violate or breach, and will not give rise to any violation or breach of, such Stockholder’s certificate of incorporation or formation or limited liability company agreement or other organizational documents (if such Stockholder is not an individual), or any Law, contract, instrument, arrangement or agreement by which such Stockholder is bound, other than any such agreement as is duly and validly waived pursuant to Section 6 of this Agreement;
(f) The execution, delivery and performance of this Agreement by such Stockholder and the proxy of such Stockholder contained herein do not, and performance of this Agreement does not by such Stockholder will not, require any consent, approval, authorization or permit of, action by, or filing with or notification to to, any governmental authority or other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).Governmental Authority;
(g) The execution, delivery and performance of this Agreement by such Stockholder and the other signatories hereto and the proxy of this Agreement will such Stockholder contained herein does not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under create or give rise to a any right of terminationin such Stockholder or, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon to such Stockholder’s knowledge, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements signatory hereto or any other encumbrance person, with respect to the Owned Shares or restriction whatsoever on title transfer any other security of the Company (collectivelyincluding, “Encumbrances”)without limitation, voting rights and rights to purchase or sell any Shares or other securities of the Company) pursuant to any stockholders’ agreement or similar agreement or commitment, other than Encumbrances imposed by federal any such right as is duly and validly waived pursuant to Section 6 of this Agreement;
(h) He, she or state securities laws it understands and acknowledges that Parent is entering into the Merger Agreement in reliance upon his, her or its execution of this Agreement, and he, she or it has read the Merger Agreement carefully and fully understands the terms and provisions thereof;
(collectivelyi) There is no Action pending against, “Permitted Encumbrances”)or, upon any to the knowledge of the properties or assets of such Stockholder, (iii) If the threatened against or affecting, Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, that could reasonably be reasonably expected to have a materially impair or materially adversely affect the ability of Stockholder Material Adverse Effect. The consummation by such Stockholder of to perform his, her or its obligations set forth in this Agreement or to consummate the transactions contemplated by this Agreement will not on a timely basis; and
(ij) violate The representations and warranties by each Stockholder in Section 2(a) are qualified in their entirety by the effects of applicable community property Law and the Laws affecting the rights of marital partners generally. For all purposes of this Agreement, Owned Shares shall include any provision shares of Parent as to which record or Beneficial Ownership is acquired by a Stockholder after the execution hereof. In the event of any judgmentstock split, order or decree applicable to such Stockholder or (ii) require any consentstock dividend, approvalmerger, reorganization, recapitalization, reclassification, combination, exchange of shares, or notice under any statutethe like of the capital stock of the Company affecting the Shares, law, rule or regulation applicable the terms of this Agreement shall apply to the resulting securities and such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at resulting securities shall be deemed to be Owned Shares for all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery purposes of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract
Sources: Voting and Lock Up Agreement (Creative Realities, Inc.)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents represents, warrants and warrants covenants to First Capital the Company as follows:
(ai) As of immediately prior to the Effective Time, such Stockholder is, the record and beneficial owner of the number of Old Shares set forth on Annex B attached hereto, has good and valid title to such Old Shares and has sole dispositive power over such Old Shares. Other than this Agreement, there are no agreements or arrangements of any kind, contingent or otherwise, to which such Stockholder is a party obligating such Stockholder to transfer, sell, tender, pledge, encumber, assign or otherwise dispose of any of the Old Shares, or cause any of the Old Shares to be transferred, sold, tendered, pledged, encumbered, assigned or otherwise disposed of. No person has any contractual or other right or obligation to purchase or otherwise acquire any of the Old Shares.
(ii) As of immediately prior to the Effective Time, the Old Shares held by such Stockholder as set forth on Annex B constitute all of the issued and outstanding shares of Common Stock owned of record or beneficially owned by such Stockholder, and the Stockholder does not own (or have any claim to own) beneficially or of record, any other shares of Common Stock (or any right, warrant, option or other security or instrument evidencing, or convertible into or exchangeable or otherwise exercisable for any shares of Common Stock).
(iii) Such Stockholder is the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power power, capacity and authority to execute and deliver enter into this Agreement and to consummate the transactions contemplated hereby, and has taken the execution and delivery of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby have been duly authorized by all necessary organizational action action, if any, on the part of such Stockholder (and no other actions or proceedings on the part of such Stockholder are necessary to authorize the execution, execution and delivery and performance by such Stockholder of this AgreementAgreement or the consummation by such Stockholder of the transactions contemplated hereby).
(civ) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it constitutes a valid due power and binding obligation of First Capitalauthority of, and due execution and delivery by, the other parties hereto, constitutes a valid and binding obligation agreement of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(fv) The executionexecution and delivery of this Agreement by such Stockholder does not, delivery and the performance by such Stockholder of this Agreement does not require any consentits agreements, approvalcovenants, authorization and obligations hereunder will not, conflict with, result in a breach or permit of, action by, filing violation of or default under (with or notification without notice or lapse of time or both), or require notice to or the consent of any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental authority agency or other third partyentity, whether acting in an individual, fiduciary or other than capacity (any consentof the foregoing, approvala “Person”), authorizationunder, permitany provisions of the organizational documents of such Stockholder, actionor any agreement, filing commitment, law, rule, regulation, judgment, order or notification the failure decree to which such Stockholder is a party or by which such Stockholder is, or any of which to make its assets are, bound, except for such conflicts, breaches, violations or obtain defaults that would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to otherwise prevent or delay such Stockholder from performing its agreements, covenants or (ii) require any consent, approval, or notice obligations under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents The Stockholders, severally and warrants not jointly, represent and warrant to First Capital the Purchaser Parties as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Each Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Purchaser Parties against such Stockholder in accordance with its terms.
(b) The number of Shares of Company Common Stock constituting Owned Shares of each Stockholder as of the date hereof, and the number of votes which the holder of such Shares shall be entitled to cast in respect of any matter as to which holders of Shares are entitled to cast votes, are set forth next to such Stockholder’s name on Schedule A of this Agreement. Such Stockholder is the record and Beneficial Owner and has good, valid and marketable title, free and clear of any Liens (other than those arising under this Agreement), of the Owned Shares, and, except as limited provided in this Agreement, has full and unrestricted power to dispose of and vote all of such Stockholder’s Owned Shares without the consent or approval of, or any other action on the part of any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such Stockholder’s Owned Shares. The Owned Shares set forth next to such Stockholder’s name on Schedule A hereto constitute all of the capital stock of the Company that is Beneficially Owned by applicable bankruptcysuch Stockholder as of the date hereof, insolvencyand, reorganizationexcept for such Stockholder’s Owned Shares and the Owned Shares owned by the other Stockholders who are parties to this Agreement, moratoriumsuch Stockholder and such Stockholder’s Affiliates do not Beneficially Own or have any right to acquire (whether currently, fraudulent conveyance and other laws upon lapse of general application affecting enforcement time, following the satisfaction of creditors’ rights generallyany conditions, upon the occurrence of any event or any combination of the foregoing) any Shares or any securities convertible into Shares (including Company Stock Options).
(fc) The executionOther than the filing by a Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery and performance by such Stockholder of this Agreement does not require by a Stockholder, the consummation by a Stockholder of the transactions contemplated hereby or compliance by a Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for ’s properties or assets (i) any including such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this AgreementOwned Shares).
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract
Sources: Voting Agreement (Kinder Morgan Inc)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Merger Cos as of the date of this Agreement (or, in the case of a Permitted Transferee, as of the date of the relevant Transfer) and as of the date of any meeting of the Company’s stockholders and as of the date of the execution of any written Stockholder consent or any proxy permitted under this Agreement or consented to by the Merger Cos, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions transaction contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this . This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Merger Cos against such Stockholder in accordance with its terms, except as limited by subject to the effect of any applicable bankruptcy, insolvencyinsolvency (including all Laws related to fraudulent transfers), reorganization, moratorium, fraudulent conveyance and other laws of general application moratorium or similar Laws affecting enforcement of creditors’ rights generallygenerally or equitable principles relating to enforceability.
(fb) Such Stockholder is the record and Beneficial Owner, free and clear of any Liens (other than those arising under this Agreement or those set forth on Schedule 3.1) of the Owned Shares, which, as of the date hereof, are set forth below such Stockholder’s name on the signature page hereto and, except as provided in this Agreement, has full and unrestricted power to dispose of and vote all of, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such Stockholder’s Owned Shares. The executionOwned Shares set forth below such Stockholder’s name on the signature page hereto constitute all of the capital stock of the Company that is Beneficially Owned by such Stockholder as of the date hereof other than Common Shares owned by charitable trusts and foundations of which such Stockholder is an Affiliate (the “Trusts”), delivery which Common Shares owned by the Trusts shall not be considered Common Shares Beneficially Owned by such Stockholder for purposes of this Agreement, and, except for such Stockholder’s Owned Shares, the Owned Shares owned by the other Stockholders who are parties to this Agreement and performance Common Shares owned by the Trusts, such Stockholder and such Stockholder’s Affiliates do not Beneficially Own or have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing), any Common Shares or any securities convertible into Common Shares (including Company Stock Options).
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any Contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Owned Shares) may be bound, (iii) If the violates any Order or Law applicable to such Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder’s properties or assets (including such Stockholder’s Owned Shares), or (iv) conflict with or violate results in a Lien upon any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for ’s properties or assets (i) any including such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this AgreementOwned Shares).
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract
Sources: Voting Agreement (Uici)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby Stockholder, severally and not jointly, represents and warrants to First Capital the Identified Bondholders as of the date of this Agreement and at all times during the term of this Agreement, as follows:
(a) Such Stockholder is has the record owner of the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction, and has all requisite organizational power capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, fulfill and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this Stockholder’s obligations hereunder. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This Agreement, assuming it Stockholder and constitutes a legal, valid and binding obligation agreement of First Capital, constitutes a valid and binding obligation of such Stockholder enforceable by the Stockholder, enforceable Identified Bondholders against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance subject to (i) the effects of bankruptcy and other similar laws of general application affecting enforcement of creditors’ rights generally, (ii) principles of equity and (iii) the implied covenant of good faith and fair dealing.
(fb) The executionSuch Stockholder is the record and Beneficial Owner and has good, delivery valid and performance marketable title, free and clear of any Liens (other than those arising under this Agreement), of the Class A Common Stock set forth next to such Stockholder’s name on Schedule A hereto, and, except as provided in this Agreement, has full and unrestricted power to dispose of and vote all of such shares of Class A Common Stock without the consent or approval of, or any other action on the part of any other Person, and has not granted any proxy inconsistent with this Agreement that is still effective or entered into any voting or similar agreement with respect to, such shares of Class A Common Stock. Except (i) with respect to shares of Class A Common Stock owned by Axxxxx X. Xxxxxxx (the “Cxxxxxx Shares”) and (ii) 34,750 shares of Class A Common Stock Beneficially Owned by J.X. Xxxxxx Partners (23A SBIC), L.P. that are not listed on Schedule A (the “Excluded Shares”), the shares of Class A Common Stock set forth next to such Stockholder’s name on Schedule A hereto constitute all of the capital stock of the Company that is Beneficially Owned by such Stockholder as of the date hereof, and, except for such shares of Class A Common Stock, the Stockholder does not Beneficially Own or have any right to acquire (whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any event or any combination of the foregoing) any shares of Class A Common Stock, Class B Common Stock or any securities convertible into Class A Common Stock or Class B Common Stock.
(c) Other than the filing by such Stockholder of any reports with the SEC required by Sections 13(d) or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement does not require by such Stockholder, the consummation by such Stockholder of the transactions contemplated hereby or compliance by such Stockholder with any consent, approval, authorization of the provisions hereof (i) requires any consent or permit other Permit of, action by, or filing with or notification to to, any governmental authority Governmental Entity or any other third party, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated Person by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder , (a “Stockholder Material Adverse Effect”).
(gii) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result results in a violation or breach of, or default constitutes (with or without notice or lapse of time, time or both) under, require consent under a default (or give gives rise to a any third party right of termination, cancellation cancellation, material modification or acceleration of any obligation or the loss of any benefit acceleration) under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the terms, conditions or provisions of any organizational document or contract to which such Stockholder is a party or by which such Stockholder or any of such Stockholder’s properties or assets of (including such Stockholder’s Class A Common Stock or Class B Common Stock) may be bound, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in violates any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree law applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder’s properties or assets (including such Stockholder’s Class A Common Stock or Class B Common Stock), free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.or
(iiv) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement results in reliance a Lien upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder’s properties or assets (including such Stockholder’s Class A Common Stock or Class B Common Stock).
Appears in 1 contract
Sources: Lock Up and Voting Agreement (Highland Capital Management Lp)
Representations and Warranties of Stockholders. Each Stockholder on its own behalf jointly hereby represents and warrants to First Capital Parent as follows:
(ai) Such Stockholder is the only record and beneficial owner of, and has good and valid title to, the Covered Shares, free and clear of Liens other than as created by this Agreement and by the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Contracts described in Schedule I to this AgreementB hereto. As of the date of this Agreementhereof, other than the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entityOwned Shares, such Stockholder does not own beneficially or of record any shares of Company capital stock or any interest therein;
(ii) Such Stockholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, formation or incorporation and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated herebyperform its obligations hereunder. The execution, delivery and performance of this Agreement by such Stockholder have been duly and validly authorized by all necessary limited liability company or corporate action, as applicable, and has taken all no other action on the part of such Stockholder is necessary organizational action to authorize the execution, delivery and performance by such Stockholder of this Agreement.
(c) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this . This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it due authorization, execution and delivery by Parent, constitutes a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance that such enforceability is subject to the Bankruptcy and other laws of general application affecting enforcement of creditors’ rights generally.Equity Exception;
(fiii) The Except for the applicable requirements of the Exchange Act or the HSR Act and Canadian Merger Laws, (A) no filing with, and no authorization, consent or approval of, any Governmental Authority is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder or the consummation by such Stockholder of the transactions contemplated hereby and (B) neither the execution, delivery or performance of this Agreement does not require by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any consentof the provisions hereof shall (1) conflict with or violate, approvalany provision of the organizational documents of any such Stockholder, authorization (2) result in any breach or permit violation of, action byor constitute a default (or an event which, filing with notice or notification lapse of time or both, would become a default) under, or result in the creation of a Lien on any property or asset of such Stockholder (including the Covered Shares) pursuant to any governmental authority Contract to which such Stockholder is a party or other third party, by which such Stockholder or any property or asset of such Stockholder is bound other than this Agreement and the Contracts described in Schedule B hereto or (3) violate any consentorder, approvalwrit, authorizationinjunction, permitdecree, actionstatute, filing rule or notification regulation applicable to such Stockholder and in existence as of the failure date hereof except, in the case of which to make clause (2) or obtain (3), for breaches, violations, defaults or Liens that would not, individually or in the aggregate, be reasonably expected materially impair the ability of such Stockholder to prevent or materially delay the consummation perform its obligations hereunder;
(iv) As of the transactions contemplated by date of this Agreement, there is no action, proceeding or investigation pending against such Stockholder or, to the Contribution knowledge of such Stockholder, threatened against such Stockholder that questions the validity of this Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and the performance by such Stockholder of its obligations under this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.Agreement;
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(iv) Such Stockholder understands and acknowledges that First Capital Parent is entering into the Contribution Merger Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement.Agreement and the representations and warranties of such Stockholder contained herein; and
(jvi) No brokerAs of the date hereof there does not exist, investment bankand at no time prior to the Time of Termination will such Stockholder permit to exist, financial advisor any outstanding Indebtedness under any of the agreements described in Schedule A or other person Schedule B to which such Stockholder is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholderbound.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf Stockholder, as to itself (severally and not jointly), hereby represents and warrants to First Capital the Company as follows:
(a) Such Stockholder is the record or beneficial owner of, and has good and valid title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. Such Stockholder has sole voting power, sole power of disposition, sole power to demand appraisal rights and sole power to agree to all of the equity matters set forth in this Agreement, in each case with respect to all of such Covered Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities and/or laws and the terms of this Agreement. The Covered Shares are not subject to any debt voting trust agreement or similar securities that are convertible into equity securities other contract to which such Stockholder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of the Company set forth opposite the name of such Stockholder on Schedule I Covered Shares. Except pursuant to this Agreement. As , there are no options, warrants, or other rights, agreements, arrangements, or commitments of any character to which such Stockholder is a party relating to the pledge, disposition, or voting of any of the date Covered Shares. Such Stockholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any Covered Shares, except as contemplated by this Agreement. For the purposes of this Agreement, the equity securities and/or “Transfer” means, with respect to any debt Covered Shares, any assignment, pledge, conveyance of any legal or similar securities that are convertible into equity securities beneficial ownership interest in, sale, transfer, exchange, gift, mortgage, encumbrance, grant of the Company set forth opposite the name a security interest, issuance of such Stockholder on Schedule I to this Agreement represent all a participation interest, or other disposition, either directly or indirectly, by operation of the shares of equity securities and/or any debt law or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.otherwise
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, Each such Stockholder which is an entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, formation and has all requisite organizational power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and has taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(c) If the Stockholder is an individual, perform its obligations hereunder; each such Stockholder who is a natural person has the valid full legal power and capacity to execute and deliver this Agreement and has to perform such Stockholder’s obligations hereunder. The execution, delivery and performance of this Agreement by each such Stockholder which is an entity, the performance by such Stockholder of its obligations hereunder and the consummation by such Stockholder of the transactions contemplated hereby have been duly executed and delivered validly authorized by such Stockholder and no other actions or proceedings on the part of such Stockholder are necessary to authorize the execution and delivery by such Stockholder of this Agreement.
(d) If , the performance by such Stockholder is a corporation, partnership, limited liability company of its obligations hereunder or other entity, this the consummation by such Stockholder of the transactions contemplated hereby. This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of First Capital, constitutes a valid and binding obligation of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws of general application affecting enforcement of creditors’ rights generallygenerally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). If such Stockholder is married, and any of the Covered Shares of such Stockholder constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly and validly executed and delivered by such Stockholder’s spouse and, assuming due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of such Stockholder’s spouse, enforceable against such Stockholder’s spouse in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(fc) The Except for the applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any governmental authority is necessary on the part of such Stockholder for the execution, delivery and performance of this Agreement by such Stockholder or the consummation by such Stockholder of the transactions contemplated hereby and (ii) neither the execution, delivery or performance of this Agreement does not require by such Stockholder nor the consummation by such Stockholder of the transactions contemplated hereby nor compliance by such Stockholder with any consentof the provisions hereof shall (A) conflict with or violate, approvalany provision of the organizational documents of any such Stockholder which is an entity, authorization (B) result in any breach or permit violation of, action byor constitute a default (or an event which, filing with notice or notification lapse of time or both, would become a default) under, or give to others any governmental authority rights of termination, amendment, acceleration or other third partycancellation of, other than or result in the creation of a Lien on such property or asset of such Stockholder pursuant to, any consentcontract to which such Stockholder is a party or by which such Stockholder or any property or asset of such Stockholder is bound or affected or (C) violate any order, approvalwrit, authorizationinjunction, permitdecree, actionstatute, filing rule or notification regulation applicable to such Stockholder or any of such Stockholder’s properties or assets except, in the failure case of which to make clause (B) or obtain (C), for breaches, violations or defaults that would not, individually or in the aggregate, be reasonably expected materially impair the ability of such Stockholder to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”)hereunder.
(gd) The executionThere is no action, delivery and performance by suit, investigation, complaint or other proceeding pending against any such Stockholder of this Agreement will not (i) result in a violation ofor, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets knowledge of such Stockholder, (iii) If any other Person or, to the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents knowledge of such Stockholder, threatened against any Stockholder or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, Person that could reasonably be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by materially impair or materially adversely affect the ability of such Stockholder to perform such Stockholder’s obligations hereunder or to restrict or prohibit (or that, if successful, would restrict or prohibit) the exercise by the Company of the transactions contemplated by its rights under this Agreement will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed performance by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control party of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution its obligations under this Agreement.
(ie) Such Stockholder understands and acknowledges that First Capital the Company is entering into the Contribution Purchase Agreement in reliance upon such Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with Agreement and the transactions contemplated hereby based upon arrangements made by or on behalf representations and warranties of such StockholderStockholder contained herein.
Appears in 1 contract
Representations and Warranties of Stockholders. Each Stockholder on its own behalf hereby represents represents, warrants and warrants covenants to First Capital the Company as follows:
(ai) As of immediately prior to the Exchange, such Stockholder is, the record and beneficial owner of the number of Old Shares set forth on Annex B attached hereto, has good and valid title to such Old Shares and has sole dispositive power over such Old Shares. Other than this Agreement, there are no agreements or arrangements of any kind, contingent or otherwise, to which such Stockholder is a party obligating such Stockholder to transfer, sell, tender, pledge, encumber, assign or otherwise dispose of any of the Old Shares, or cause any of the Old Shares to be transferred, sold, tendered, pledged, encumbered, assigned or otherwise disposed of. No person has any contractual or other right or obligation to purchase or otherwise acquire any of the Old Shares.
(ii) As of immediately prior to the Exchange, the Old Shares held by such Stockholder as set forth on Annex B constitute all of the issued and outstanding shares of Class A Common Stock owned of record or beneficially owned by such Stockholder, and the Stockholder does not own (or have any claim to own) beneficially or of record, any other shares of Class A Common Stock (or any right, warrant, option or other security or instrument evidencing, or convertible into or exchangeable or otherwise exercisable for any shares of Class A Common Stock).
(iii) Such Stockholder is the record owner of the equity securities and/or any debt either (a) an individual or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement. As of the date of this Agreement, the equity securities and/or any debt or similar securities that are convertible into equity securities of the Company set forth opposite the name of such Stockholder on Schedule I to this Agreement represent all of the shares of equity securities and/or any debt or similar securities that are convertible into equity securities of the Company owned of record by such Stockholder.
(b) If the Stockholder is a corporation, partnership, limited liability company or other entity, such Stockholder is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its jurisdiction, and incorporation or organization.
(iv) Such Stockholder has all requisite organizational power power, capacity and authority to execute and deliver enter into this Agreement and to consummate the transactions contemplated hereby, and has taken the execution and delivery of this Agreement by such Stockholder and the consummation by such Stockholder of the transactions contemplated hereby have been duly authorized by all necessary organizational action action, if any, on the part of such Stockholder (and no other actions or proceedings on the part of such Stockholder are necessary to authorize the execution, execution and delivery and performance by such Stockholder of this AgreementAgreement or the consummation by such Stockholder of the transactions contemplated hereby).
(cv) If the Stockholder is an individual, such Stockholder has the valid capacity to execute and deliver this Agreement and has duly executed and delivered this Agreement.
(d) If the Stockholder is a corporation, partnership, limited liability company or other entity, this This Agreement has been duly authorized, and validly executed and delivered by such Stockholder.
(e) This AgreementStockholder and, assuming it constitutes a valid due power and binding obligation of First Capitalauthority of, and due execution and delivery by, the other parties hereto, constitutes a valid and binding obligation agreement of the such Stockholder, enforceable against such Stockholder in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws of general application affecting enforcement of creditors’ rights generally.
(fvi) The executionexecution and delivery of this Agreement by such Stockholder does not, delivery and the performance by such Stockholder of this Agreement does not require any consentits agreements, approvalcovenants, authorization and obligations hereunder will not, conflict with, result in a breach or permit of, action by, filing violation of or default under (with or notification without notice or lapse of time or both), or require notice to or the consent of any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental authority agency or other third partyentity, whether acting in an individual, fiduciary or other than capacity (any consentof the foregoing, approvala “Person”), authorizationunder, permitany provisions of the organizational documents of such Stockholder, actionor any agreement, filing commitment, law, rule, regulation, judgment, order or notification the failure decree to which such Stockholder is a party or by which such Stockholder is, or any of which to make its assets are, bound, except for such conflicts, breaches, violations or obtain defaults that would not, individually or in the aggregate, be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by the Contribution Agreement or such Stockholder’s ability to observe and perform its material obligations hereunder (a “Stockholder Material Adverse Effect”).
(g) The execution, delivery and performance by such Stockholder of this Agreement will not (i) result in a violation of, or default (with or without notice or lapse of time, or both) under, require consent under or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of any benefit under any (A) contract, trust, commitment, agreement, understanding or arrangement of any kind (a “Contract”) or (B) permit, concession, franchise, right or license binding upon such Stockholder, (ii) result in the creation of any pledges, liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrance or restriction whatsoever on title transfer (collectively, “Encumbrances”), other than Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”), upon any of the properties or assets of such Stockholder, (iii) If the Stockholder is a corporation, partnership, limited liability company or other entity, conflict with or result in any violation of any provision of the organizational documents of such Stockholder, or (iv) conflict with or violate any applicable laws, other than, in the case of clauses (i), (ii) and (iv), as would not, individually or in the aggregate, be reasonably expected to have a Stockholder Material Adverse Effect. The consummation by such Stockholder of the transactions contemplated by this Agreement will not (i) violate any provision of any judgment, order or decree applicable to otherwise prevent or delay such Stockholder from performing its agreements, covenants or (ii) require any consent, approval, or notice obligations under any statute, law, rule or regulation applicable to such Stockholder.
(h) Such Stockholder’s Subject Securities are now, and at all times during the term hereof will be, held by such Stockholder or by a nominee or custodian for the benefit of such Stockholder, free and clear of all Encumbrances, except for (i) any such Encumbrances arising hereunder, (ii) Permitted Encumbrances and (iii) any Encumbrance imposed by any margin account in with the Subject Securities may be held (provided, that the Stockholder retains voting and dispositional control of any such Subject Securities); provided, that such Stockholder may Transfer such Subject Securities in accordance with the provisions of a separate lock-up agreement being entered into between such Stockholder and the other parties thereto in accordance with the Contribution Agreement.
(i) Such Stockholder understands and acknowledges that First Capital is entering into the Contribution Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
(j) No broker, investment bank, financial advisor or other person is entitled to any broker’s, finder’s, financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Stockholder.
Appears in 1 contract