Certain Securities Law Matters. (a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5. (b) Each certificate representing (i) the Shares; and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer established in this Section 5. (c) The undersigned agrees to comply in all respects with the provisions of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is in effect a registration statement under the Act covering the proposed transfer, the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail, and shall be accompanied, at the undersigned's expense evidence satisfactory to the Company the effect that the proposed transfer of the Shares may be effected without registration under the Act or applicable state securities law.
Appears in 2 contracts
Samples: Stock Subscription Agreement (Regent's Secret Inc.), Stock Subscription Agreement (Regent's Secret Inc.)
Certain Securities Law Matters. (a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5.
(b) Each certificate representing (i) the Shares; Shares and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer established in this Section 5.
(c) The undersigned agrees to comply in all respects with the provisions of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is in effect a registration statement under the Act covering the proposed transfer, the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail, and shall be accompanied, at the undersigned's expense evidence satisfactory to the Company the effect that the proposed transfer of the Shares may be effected without registration under the Act or applicable state securities law.
Appears in 2 contracts
Samples: Stock Subscription Agreement, Stock Subscription Agreement (GreenPlex Services, Inc.)
Certain Securities Law Matters. (a) The Shares shall iGambit is not be sold, assigned, transferred or pledged except upon satisfaction and never has been a shell company within the meaning of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held Rule 405 promulgated by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5SEC.
(b) Each certificate representing (iNo “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) the Shares; and (ii) any other securities issued in respect of the Shares upon Securities Act (a “Disqualification Event”) is applicable to iGambit or, to iGambit’s Knowledge, any stock splitiGambit Covered Person (as defined in Rule 506(d)), stock dividendexcept for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3), recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer established in this Section 5is applicable.
(c) iGambit has filed all reports, schedules, forms, statements and other documents required to be filed by iGambit under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve (12) months preceding the date hereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension or further extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The undersigned agrees to financial statements of iGambit included in the SEC Reports comply in all material respects with applicable accounting requirements and the provisions rules and regulations of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is the SEC with respect thereto as in effect a registration statement under at the Act covering time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the proposed transfer, the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner notes thereto and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detailexcept that unaudited financial statements may not contain all footnotes required by GAAP, and shall be accompaniedfairly present in all material respects the financial position of iGambit and its consolidated subsidiaries and affiliates as of and for the dates thereof and the results of operations and cash flows for the periods then ended, at subject, in the undersigned's expense evidence satisfactory case of unaudited statements, to the Company the effect that the proposed transfer of the Shares may be effected without registration under the Act or applicable state securities lawnormal, immaterial, year-end audit adjustments.
Appears in 2 contracts
Samples: Merger Agreement (iGambit, Inc.), Merger Agreement (iGambit, Inc.)
Certain Securities Law Matters. (a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5.
(b) Each certificate representing (i) none of the Shares; transactions contemplated by this Agreement including, without limitation, the use of the proceeds from the sale of the Units will violate or result in a violation of Section 7 of the 1934 Act, or any regulation promulgated thereunder, including, without limitation, Regulations G, T, U, and X of the Board of Governors of the Federal Reserve System;
(ii) any other securities issued in respect there is and has been no failure on the part of the Shares upon Corporation or any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares Corporation’s directors or officers, in order to implement the restrictions on transfer established in this Section 5.
(c) The undersigned agrees their capacities as such, to comply in all material respects with any applicable provision of the provisions Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications;
(iii) prior to the date hereof, neither the Corporation nor any of its affiliates has taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Corporation in connection with the offering of the Units;
(iv) the Corporation is subject to Section 13 or 15(d) of the 1934 Act;
(v) other than the notification filing on Form D required to be filed with the SEC 15 days after the Closing Date (and a Form 45-106F1 within 10 days after the Closing Date), all filings required to be made by the Corporation and the Subsidiaries pursuant to the Securities Laws and general corporate law applicable to them have been made and such filings were true and accurate as at the respective dates thereof and the Corporation has not filed any confidential material change reports;
(vi) the Corporation is not, and after giving effect to the offering and sale of the Units, will not be an “investment company”, or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;
(vii) assuming compliance with the terms of the Subscription Agreement, and this Section 5. Prior Agreement, neither the Corporation nor any person acting on its behalf has offered or sold the Units (or any securities issuable on conversion thereof) by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the 1933 Act or, with respect to Units (or any such securities) sold outside the United States to non-U.S. persons (as defined in Rule 902 under the 1933 Act), by means of any Directed Selling Efforts and the Corporation, any affiliate of the Corporation and any person acting on its or their behalf has complied with and will implement the offering restriction requirements of Rule 902 under the 1933 Act;
(viii) the Corporation and each of the Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any proposed saledifferences. Since June 30, assignment2006, transfer there has been (1) no material weakness in the Corporation’s internal control over financial reporting (whether or pledge of any Sharesnot remediated) and (2) no change in the Corporation’s internal control over financial reporting that has materially affected, unless there or is in effect a registration statement under the Act covering the proposed transferreasonably likely to materially affect, the undersigned thereof shall give written notice to the Company Corporation’s internal controls over financial reporting;
(ix) The principal executive officer and principal financial officer of the undersigned's intention to effect Corporation have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated thereunder by the SEC, and the statements contained in all such transfer, sale, assignment or pledge. Each such notice shall describe the manner certifications were complete and circumstances correct in all material respects as of the proposed transferrespective dates made. Neither the Corporation nor any of its officers has received notice from the SEC questioning or challenging the accuracy, salecompleteness, assignment content, form or pledge in sufficient detail, and shall be accompanied, at the undersigned's expense evidence satisfactory to the Company the effect that the proposed transfer manner of the Shares may be effected without registration under the Act filing or applicable state securities lawsubmission of such certifications.
Appears in 1 contract
Certain Securities Law Matters. (aEach Stockholder is an "accredited investor" within the meaning of Rule 501(a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5.
(b) Each certificate representing (i) the Shares; and (ii) any other securities issued in respect of the Shares upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer established in this Section 5.
(c) The undersigned agrees to comply in all respects with the provisions of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is in effect a registration statement under the Act covering and has such knowledge and experience in financial business matters that he or she is capable of evaluating the proposed transfer, merits and risks of an investment in Datalink Common Stock to be received pursuant to this Agreement and the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledgeMerger. Each such notice shall describe Stockholder acknowledges being furnished by Datalink with a copy of Datalink's Registration Statement and being offered the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detailopportunity to ask questions of, and shall be accompaniedreceive answers from, at the undersignedDatalink's expense evidence satisfactory officers with respect to the Company the effect Datalink's business and financial affairs. Each Stockholder hereby acknowledges and agrees that the proposed transfer of the Shares may Datalink Common Stock to be effected without registration acquired pursuant to this Agreement is being acquired for his or her own account and not for any other person, or with a view to distribution or sale thereof, and that such securities have not been registered under the Act or applicable state securities or "Blue Sky" laws, and therefore cannot be resold unless so registered or exempted therefrom. The Stockholders understand that certificates representing the Datalink Common Stock will bear the following legend reflecting the foregoing restrictions on transfer: "The shares of stock represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act") or under any applicable state securities laws (the "Laws"). The shares may not be sold, transferred, assigned, pledged or otherwise disposed of at any time unless they are registered under such Act and laws or unless in the opinion of legal counsel for the Company such disposition will not result in a violation of such Act or any such Laws." Each Stockholder agrees to deliver to Datalink at the Closing an undertaking in the form of Exhibit 5.35 hereto (the "Lock-Up Agreement") addressed to the managing underwriters of Datalink's proposed IPO. In the event that Datalink withdraws the Registration Statement for the IPO after the Closing, but thereafter determines at any time in the future to proceed with an IPO, the Stockholders further agree to furnish to the managing underwriter or underwriters of the revived IPO, upon their request, a similar undertaking to the Lock-Up Agreement containing the same restrictions on the resale of Datalink Common Stock by the Stockholders as are requested by such underwriters of Datalink's officers, directors and principal stockholders. No Stockholder (i) is or controls a member of the National Association of Securities Dealers, Inc. (the "NASD"), (ii) is a registered representative with a NASD member firm or (iii) is the parent, brother or sister, brother-in-law or sister-in-law, son or daughter or son-in-law or daughter-in-law of an NASD member or of a registered representative of a NASD member firm.
Appears in 1 contract
Samples: Merger Agreement (Datalink Corp)
Certain Securities Law Matters. The offering, issuance (a) The Shares shall not be soldor entry into), assigned, transferred or pledged except upon satisfaction and distribution of the conditions specified New Common Interests (including the Tranche C Commitment Equity) and any other Securities entered into and/or issued in this Section 5, which conditions are intended to ensure compliance connection with the provisions Prepackaged Plan, shall be exempt, pursuant to section 1145 of the Act. The undersigned will cause any proposed purchaser, assignee, transferee Bankruptcy Code or pledgee section 4(a)(2) of the Shares held Securities Act, as applicable, without further act or actions by any Person, from, among other things, the undersigned to agree to take registration requirements of section 5 of the Securities Act and hold such securities subject any other applicable Law requiring registration prior to the provisions offering, issuance, distribution, or sale of Securities to the maximum extent permitted by Law, in accordance with, and conditions of this Section 5.
(b) Each certificate representing pursuant to, (i) section 1145 of the Shares; and Bankruptcy Code (ii) section 4(a)(2) of the Securities Act, and any (iii) other available exemption from registration, as applicable. In addition, the New Common Interests (including the Tranche C Commitment Equity) are issued in reliance on section 1145 of the Bankruptcy Code and section 4(a)(2) of the Securities Act, as applicable, and (1) will not be “restricted securities” as defined in Rule 144(a)(3) under the Securities Act and (2) will be freely tradable and transferable in the United States by a recipient thereof that (i) is an entity that is not an “underwriter” as defined in section 1145(b)(1) of the Bankruptcy Code, (ii) is not an “affiliate” of the Debtors as defined in Rule 144(a)(1) under the Securities Act, (iii) has not been such an “affiliate” within 90 days of the time of the transfer, and (iv) has not acquired such securities from an “affiliate” within one year of the time of transfer, subject in each case to compliance with applicable securities Laws and any rules and regulations of the SEC or state or local securities Laws, if any, applicable at the time of any future transfer of such Securities, and subject to any restrictions in the New Corporate Governance Documents. The issuance of the New Common Interests shall not constitute an invitation or solicitation of an invitation or offer to sell or buy, any securities in contravention of any applicable Law in any jurisdiction. No action has been taken, nor will be taken, in any jurisdiction that would permit a public offering of any of the New Common Interests (other than securities issued in respect pursuant to section 1145 of the Shares upon Bankruptcy Code) in any stock splitjurisdiction where such action for that purpose is required. The Reorganized Debtors need not provide any further evidence other than the Prepackaged Plan or the Confirmation Order with respect to the treatment of the New Common Interests (including the Tranche C Commitment Equity) under applicable securities Laws. Notwithstanding anything to the contrary in the Plan, stock dividendno Entity (including, recapitalizationfor the avoidance of doubt, merger, consolidation or similar event, DTC and any transfer agent) shall (unless otherwise permitted be entitled to require a legal opinion regarding the validity of any transaction contemplated by the provisions Prepackaged Plan, including, for the avoidance of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in doubt, whether the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933New Common Interests are exempt from registration and/or eligible for DTC book-entry delivery, AS AMENDEDsettlement, and depository services. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records DTC and giving instructions to any transfer agent of the Shares in order to implement the restrictions on transfer established in this Section 5.
(c) The undersigned agrees to comply in all respects with the provisions of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is in effect a registration statement under the Act covering the proposed transfer, the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detail, and shall be accompaniedrequired to accept and conclusively rely upon the Prepackaged Plan and Confirmation Order in lieu of a legal opinion regarding whether the New Common Interests and are exempt from registration and/or eligible for DTC book-entry delivery, at the undersigned's expense evidence satisfactory to the Company the effect that the proposed transfer of the Shares may be effected without registration under the Act or applicable state securities lawsettlement and depository services.
Appears in 1 contract
Certain Securities Law Matters. (a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the conditions specified Securities Act (a “Disqualification Event”) is applicable to Parent or, to Parent’s Knowledge, any Parent Covered Person (as defined in this Section 5Rule 506(d)), except for a Disqualification Event as to which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee Rule 506(d)(2)(ii–iv) or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5(d)(3) is applicable.
(b) Each certificate representing Parent has filed all reports, schedules, forms, statements and other documents required to be filed by Parent under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve (i12) months preceding the Shares; date hereof (the foregoing materials, including the exhibits thereto and (iidocuments incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any other securities issued such SEC Reports prior to the expiration of any such extension or further extension. As of their respective dates, the SEC Reports complied in respect all material respects with the requirements of the Shares upon any stock splitSecurities Act and the Exchange Act, stock dividendas applicable, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent none of the Shares SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to implement make the restrictions on transfer established statements therein, in this Section 5.
(c) the light of the circumstances under which they were made, not misleading. The undersigned agrees to financial statements of Parent included in the SEC Reports comply in all material respects with applicable accounting requirements and the provisions rules and regulations of this Section 5. Prior to any proposed sale, assignment, transfer or pledge of any Shares, unless there is the SEC with respect thereto as in effect a registration statement under at the Act covering time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the proposed transfer, the undersigned thereof shall give written notice to the Company of the undersigned's intention to effect such transfer, sale, assignment or pledge. Each such notice shall describe the manner notes thereto and circumstances of the proposed transfer, sale, assignment or pledge in sufficient detailexcept that unaudited financial statements may not contain all footnotes required by GAAP, and shall be accompaniedfairly present in all material respects the financial position of Parent and its consolidated subsidiaries and affiliates as of and for the dates thereof and the results of operations and cash flows for the periods then ended, at subject, in the undersigned's expense evidence satisfactory case of unaudited statements, to the Company the effect that the proposed transfer of the Shares may be effected without registration under the Act or applicable state securities lawnormal, immaterial, year-end audit adjustments.
Appears in 1 contract
Certain Securities Law Matters. (a) The Shares shall not be sold, assigned, transferred or pledged except upon satisfaction of the conditions specified in this Section 5, which conditions are intended to ensure compliance with the provisions of the Act. The undersigned will cause any proposed purchaser, assignee, transferee or pledgee of the Shares held by the undersigned to agree to take and hold such securities subject to the provisions and conditions of this Section 5.
(b) Each certificate representing (i) there is and has been no failure on the Shares; and (ii) any other securities issued in respect part of the Shares upon Corporation or any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall (unless otherwise permitted by the provisions of Section 5(c) below) be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable state securities laws): THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION. The undersigned consents to the Company making a notation on its records and giving instructions to any transfer agent of the Shares Corporation’s directors or officers, in order to implement the restrictions on transfer established in this Section 5.
(c) The undersigned agrees their capacities as such, to comply in all material respects with any applicable provision of the provisions Xxxxxxxx-Xxxxx Act of this 2002 and the rules and regulations promulgated in connection therewith, including Section 5. Prior 402 related to loans and Sections 302 and 906 related to certifications;
(ii) prior to the date hereof, none of the Corporation, its directors, officers or, to the best of the knowledge of the Corporation, any of the Corporation’s affiliates who are neither directors nor officers of the Corporation, have taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Corporation, or which is a violation of Regulation M under the 1934 Act, in connection with the offering of the Special Warrants;
(iii) the Corporation is subject to Section 13 of the 1934 Act;
(iv) other than the notification filing on Form D required to be filed with the SEC within 15 days after the Closing Date, a current report on Form 8-K disclosing the unregistered sale of equity securities under Item 3.02 thereof, to be filed with the SEC within 4 days after the Closing Date, and a Form 45-106F1 to be filed with the SEC within 10 days after the Closing Date, all filings required to be made by the Corporation and the Subsidiary pursuant to the Securities Laws and general corporate law applicable to them have been made and such filings were true and accurate as at the respective dates thereof and the Corporation has not filed any confidential material change reports;
(v) the Corporation is not, and after giving effect to the offering and sale of the Special Warrants, will not be an “investment company”, or an entity “controlled” by an “investment company”, as such terms are defined in the United States Investment Company Act of 1940, as amended;
(vi) neither the Corporation, its directors and officers, nor, to the best of the knowledge of the Corporation, any of its predecessors or affiliates who are not directors or officers, have been subject to any proposed order, judgment or decree by any court of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failure to comply with Rule 503 of Regulation D;
(vii) assuming compliance with the terms of the Subscription Agreement, and this Agreement, neither the Corporation nor any person acting on its behalf (except the Agents, their affiliates and any person acting on their behalf, in respect of which no representation is made) has offered or sold the Special Warrants (or any securities issuable on conversion thereof) by means of any General Solicitation or General Advertising or, with respect to Special Warrants (or any securities issuable on conversion thereof) sold outside the United States to non-U.S. Persons, by means of any Directed Selling Efforts, and the Corporation, any affiliate of the Corporation and any person acting on its or their behalf (except the Agents, their affiliates and any person acting on their behalf, in respect of which no representation is made) has complied with and will implement the offering restriction requirements of Regulation S;
(viii) during the period in which the Offered Securities are offered for sale, assignmentneither the Corporation nor any of its affiliates, transfer nor any person acting on its or pledge their behalf (except the Agents, their affiliates and any persons acting on any of their behalf, in respect of which no representation is made) has taken any Sharesaction that would cause the exemptions or exclusions from the prospectus and registration requirements under Securities Laws to be unavailable with respect to offers and sales of the Offered Securities pursuant to this Agreement;
(ix) the Corporation has not, unless during the period beginning six months prior to the start of the offering of Offered Securities and ending six months after the completion of the offering of Offered Securities sell, offer for sale or solicit any offer to buy any of its securities in the United States in a manner that would be integrated with and would cause the exemption from registration provided by Rule 506 of Regulation D to be unavailable with respect to offers and sales of the Offered Securities pursuant to this Agreement;
(x) the Corporation and the Subsidiary each maintain a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since December 31, 2006, there has been no change in the Corporation’s internal control over financial reporting that has materially affected, or is in effect a registration statement under the Act covering the proposed transferreasonably likely to materially affect, the undersigned thereof shall give written notice Corporation’s internal controls over financial reporting. As disclosed in the Information, the Corporation’s Chief Executive Officer and Chief Financial Officer have concluded that the Corporation’s disclosure controls and procedures are not effective due to certain material weaknesses in internal control over financial reporting;
(xi) the Company principal executive officer and principal financial officer of the undersigned's intention to effect Corporation have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated thereunder by the SEC in connection with the documents comprising the Public Record, and the statements contained in all such transfer, sale, assignment or pledge. Each such notice shall describe the manner certifications were complete and circumstances correct in all material respects as of the proposed transferrespective dates made. Neither the Corporation nor any of its officers has received notice from the SEC questioning or challenging the accuracy, salecompleteness, assignment content, form or pledge in sufficient detail, and shall be accompanied, at the undersigned's expense evidence satisfactory to the Company the effect that the proposed transfer manner of the Shares may be effected without registration under the Act filing or applicable state securities lawsubmission of such certifications.
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