Additional Representations and Agreements. (a) The Company represents and agrees that, unless it obtains the prior consent of the Representatives on behalf of the several Underwriters, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives on behalf of other Underwriters, it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Act, required to be filed with the Commission. Each Permitted Free Writing Prospectus as of the date hereof is attached as Schedule B. The Company represents that it has treated, and agrees that it will treat, each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. The Company represents that each Issuer Represented Free Writing Prospectus, if any, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any information in the Preliminary Prospectus Supplement or any other prospectus deemed to be a part of the Prospectus that has not been superseded or modified, provided that this representation does not apply to information contained in the Permitted Free Writing Prospectus based upon and in conformity with information relating to any Underwriter furnished to the Company in writing by any Underwriter expressly for use in the Permitted Free Writing Prospectus, which information is limited to the information set forth in Schedule C hereto.
Additional Representations and Agreements. Each party represents to the other party (which representations shall be deemed repeated by each party on each date on which a Transaction is entered into and shall be representations for all purposes of this Agreement including, without limitation, Sections 3, 4, and 5(a)(iv) hereof):
Additional Representations and Agreements. The parties hereby represent and agree (which representations and agreements will be deemed to be repeated on each date on which a Transaction is entered into hereunder) that with respect to this Agreement and each Transaction, it is and will be, at all times, in full compliance with all applicable requirements and restrictions under the Investment Company Act of 1940, as amended.
Additional Representations and Agreements. For the purpose of Section 3 of the Agreement, Party B further represents and warrants to Party A (which representations will be deemed to be repeated by Party B on each date on which a Transaction is entered into), and agrees with Party A as follows:
Additional Representations and Agreements. Borrower represents and warrants to and for the benefit of, and agrees with, Lender (1) on the date hereof and (2) on each Trade Date, as follows:
(i) Borrower is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended).
(ii) Borrower is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(iii) No Transaction hereunder will violate or contravene any trading or corporate policy of the Issuer applicable to Borrower or Borrower’s affiliates, including, but not limited to, the Issuer’s window period policy.
(iv) The assets used in connection with the execution, delivery and performance of the Agreement and the Transactions entered into hereunder are not and will not be the assets of (A) an “employee benefit plan” (with the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to Title I of ERISA, (B) a plan described in Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) to which Section 4975 of the Code applies or (C) an entity whose underlying assets include “plan assets” by reason of Department of Labor regulation section 2510.3-101 (as modified by Section 3(42) of ERISA) or otherwise.
(v) Without limiting the representations contained in Section 3(a)(iii) of the Agreement and after giving effect to the Issuer Agreement, Borrower represents that its execution, delivery and performance of this Master Confirmation, the Pledge Agreement, the Collar Confirmations and any other documentation relating to the Agreement to which Borrower or any of its Affiliates is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, registration rights agreement, confidentiality agreement, merger agreement, right of first refusal or other agreement binding on Borrower or its Affiliates.
(vi) Borrower shall not use any part of the proceeds of any Transaction, whether directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” (within the meaning of Regulation U or Regulation X, in each case, issued by the Board of Governors of the Federal Reserve System of the United States).
(vii) Borrower shall have delivered to Lender an FRB Form U-1, completed to satisfaction of Lender and duly ...
Additional Representations and Agreements. 16.1 Xx. Xxxxx Xxxxxx makes the following acknowledgements, representations, warrants and agreements:
16.1.1 he has been advised by Captiva Software Corporation and understands that (i) the Consideration Shares have, at the date hereof, not been registered or qualified under the U.S. Securities Act of 1933, as amended (the “Securities Act”), or any other applicable securities law, and (ii) the Consideration Shares, unless so registered, may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities law, pursuant to an exemption therefrom or in a transaction not subject thereto and in each case in compliance with the conditions for transfer set forth in sub-clause 16.1.3 below;
16.1.2 he represents, warrants and agrees that he is not a U.S. person and is located outside the United States and any person for whose account or benefit he is acting is not a U.S. person and is located outside the United States and, upon acquiring the Consideration Shares, he and any such person will not be a U.S. person and will be located outside the United States (as used herein, “U.S. Person” and “United States” will have the meanings specified in Regulation S under the Securities Act);
16.1.3 he agrees and each subsequent holder of the Consideration Shares by its acceptance thereof will agree, to offer, sell or otherwise transfer such Consideration Shares only (a) to Captiva Software Corporation or any subsidiary thereof, (b) to an institutional “accredited investor” as such term is defined in Rule 501(a)(1), (2), (3), (7) and (8) under the Securities Act that is purchasing for its own account or for the account of such an institutional “accredited investor” and who delivers to Captiva Software Corporation a letter containing the same certifications as this letter, (c) pursuant to a registration statement which has been declared effective under the Securities Act, (d) in an offshore transaction in accordance with Rule 904 of the Regulation S under the Securities Act, or (e) pursuant to any other available exemption from the registration requirements of the Securities Act;
16.1.4 he acknowledges that each Consideration Share he receives upon certification will contain a legend substantially to the following effect: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THIS SECURITY MAY NOT BE REO...
Additional Representations and Agreements. Party B represents and warrants to and for the benefit of, and agrees with, Party A as follows:
Additional Representations and Agreements. Counterparty represents and warrants to and for the benefit of, and agrees with, CS as of the Trade Date; in the case of clauses (vi), (x), (xii) and (xiv), the date on which Counterparty designates a Funding Date (if any); and, in the case of clauses (i), (ii), (vi), (viii), (xi) and (xii) below, any date Counterparty elects Physical Settlement or Modified Physical Settlement, as follows:
(i) Counterparty is not entering into the Transaction, and will not take any action or make any election or deemed election in connection with the Transaction, to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) in violation of applicable law.
(ii) Counterparty is not entering into the Transaction, and will not take any action or make any election or deemed election in connection with the Transaction, “on the basis of” (as defined in Rule 10b5-1(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) any material nonpublic information concerning the Shares or the business, operations or prospects of the Issuer.
(iii) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended).
(iv) Counterparty is (A) an “accredited investor” within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”), (B) is entering into the Transaction for its own account and not with a view to distribution and (C) understands and acknowledges that the Transaction has not and will not be registered under the Securities Act.
(v) Counterparty is not, and after giving effect to the Transaction, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(vi) The Transaction (A) does not and will not conflict with or exceed the authority granted under Counterparty’s organizational documents or under any resolutions of the board of directors of Counterparty authorizing the Transaction or Counterparty’s delivery of the Shares or any other collateral under the Security Agreement, the Supplement or the Annex, or (B) is not prohibited or restricted by and will not result in a breach of or constitute a default with respect to any legal, regulatory or contractual restriction or undertaking binding on...
Additional Representations and Agreements. For the purpose of Section 3 of the Agreement, Party B further represents and warrants to Party A (which representations will be deemed to be repeated by Party B on each date on which a Transaction is entered into), and agrees with Party A as follows:
(i) The necessary action to authorize referred to in the representation in Section 3(a)(ii) includes all authorizations required under the FDI Act.
(ii) At all times during the term of this Agreement and any Credit Support Document to which it is a party, Party B will continuously include and maintain as part of its official written books and records this Agreement, any Credit Support Document to which it is a party, and all other exhibits, supplements, and attachments hereto and documents incorporated by reference herein, all Confirmations, and evidence of all necessary authorizations.
(iii) This Agreement, any Credit Support Document to which Party B is a party, each Confirmation, and any other documentation relating to this Agreement to which it is a party or that it is required to deliver will be executed and delivered by a duly appointed or elected and authorized officer of Party B.
Additional Representations and Agreements. In consideration of the rights and benefits set forth in the Program, Claimant further represents and agrees as follows:
