Purchaser and
MDC Partners as follows:
Section 3.1
Execution and Validity of
Agreements; Zyman; Restrictive Documents.
3.1.1
Execution and Validity.
(I)
SUCH SELLER HAS THE FULL LEGAL RIGHT AND
CAPACITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM SUCH SELLER'S OBLIGATIONS
HEREUNDER.
THIS AGREEMENT HAS BEEN AND EACH OTHER AGREEMENT ENTERED INTO BY
SUCH SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY (ALL SUCH
AGREEMENTS EXECUTED BY THE SELLERS AND THE COMPANY, THE "OTHER AGREEMENTS") WILL
BE, DULY AND VALIDLY EXECUTED AND DELIVERED BY SUCH SELLER AND, ASSUMING DUE
AUTHORIZATION, EXECUTION AND DELIVERY BY THE PURCHASER, MDC PARTNERS AND EACH
OTHER PARTY HERETO OR THERETO, CONSTITUTES OR, WHEN EXECUTED, WILL CONSTITUTE A
LEGAL, VALID AND BINDING OBLIGATION OF SUCH SELLER, ENFORCEABLE AGAINST SUCH
SELLER IN ACCORDANCE WITH ITS TERMS, EXCEPT THAT (I) SUCH ENFORCEMENT MAY BE
SUBJECT TO APPLICABLE
8
BANKRUPTCY, INSOLVENCY OR OTHER SIMILAR LAWS, NOW OR HEREINAFTER IN EFFECT,
AFFECTING CREDITORS' RIGHTS GENERALLY AND (II) THE REMEDY OF SPECIFIC
PERFORMANCE AND INJUNCTIVE AND OTHER FORMS OF EQUITABLE RELIEF MAY BE SUBJECT TO
EQUITABLE DEFENSES AND TO THE DISCRETION OF THE COURT BEFORE WHICH ANY
PROCEEDING MAY BE BROUGHT (COLLECTIVELY, THE "ENFORCEABILITY EXCEPTIONS").
(II)
WITH RESPECT TO ZYMAN, THE EXECUTION AND
DELIVERY OF THIS AGREEMENT AND THE OTHER AGREEMENTS TO WHICH IT IS A PARTY, AND
THE CONSUMMATION BY IT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, HAVE
BEEN DULY AUTHORIZED BY ALL REQUIRED CORPORATE ACTION ON BEHALF OF ZYMAN.
ZYMAN
IS DULY ORGANIZED AND IS VALIDLY EXISTING AND IN GOOD STANDING (INCLUDING TAX
STATUS) UNDER THE LAWS OF THE STATE OF DELAWARE, WITH THE FULL POWER AND
AUTHORITY TO OWN ITS PROPERTY AND TO CARRY ON ITS BUSINESS ALL AS AND IN THE
PLACES WHERE SUCH PROPERTIES ARE NOW OWNED OR OPERATED OR SUCH BUSINESS IS NOW
BEING CONDUCTED, EXCEPT WHERE SUCH FAILURE TO BE IN GOOD STANDING OR SO QUALIFY
WOULD NOT HAVE A ZYMAN MATERIAL ADVERSE EFFECT.
THE TERM "ZYMAN MATERIAL
ADVERSE EFFECT" SHALL MEAN ANY CIRCUMSTANCE, CHANGE IN OR EFFECT ON ZYMAN THAT
IS OR WOULD REASONABLY BE LIKELY TO BE MATERIALLY ADVERSE TO ZYMAN'S ABILITY TO
CONSUMMATE ANY TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT TO BE UNDERTAKEN BY
IT OR ANY OTHER AGREEMENT TO WHICH IT IS A PARTY.
3.1.2
No Restrictions.
There is no suit, action, claim,
investigation or inquiry by any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentality of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision ("Governmental or Regulatory Authority"), and no legal,
administrative or arbitration proceeding pending or, to such Seller's knowledge,
threatened against such Seller with respect to the execution, delivery and
performance of this Agreement or any Other Agreement entered into by such Seller
or the transactions contemplated hereby or thereby.
3.1.3
Non-Contravention.
The execution and delivery by
such Seller of this Agreement and any Other Agreement, and the performance by
such Seller of such Seller's obligations hereunder and thereunder and the
consummation of the