Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions". (b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that: (i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required; (ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense; (iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act; (iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S; (v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; (vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 9 contracts
Samples: Purchase Agreement (1115650 Alberta LTD), Purchase Agreement (Harvest Energy Trust), Purchase Agreement (Harvest Sask Energy Trust)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB")”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act. Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it has and will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and or (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser has and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;; and
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 4 contracts
Samples: Purchase Agreement (Select Medical Holdings Corp), Purchase Agreement (Select Medical Corp), Purchase Agreement (Select Medical Corp)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company (as to itself only) and the Subsidiary Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors” contained in the Pricing Disclosure Package.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Notes or has in its possession or distributes either Memorandum any Pricing Disclosure Package or any such other material, in all cases at its own expense;
, (iiiii) the Securities Notes have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
Act and (iviii) such Initial Purchaser it has offered the Securities Notes and will offer and sell the Securities Notes (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 3 contracts
Samples: Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants The ------------------------------------------------ Purchasers acknowledge that such Initial Purchaser is they are purchasing the Securities pursuant to a qualified institutional buyer as defined in Rule 144A private sale exemption from registration under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
. Each Purchaser represents and warrants to and agrees with the Company that (ivi) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaserit, its Affiliates nor affiliates and any persons person acting on its or their behalf its affiliates behalf, have engaged not solicited and will not solicit any offer to buy or will engage in offer to sell the Securities by means of any directed selling efforts form of general solicitation or general advertising (within the meaning of Regulation SD) or in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Securities to be sold in reliance on Regulation S, by means of any directed selling efforts and (ii) it has solicited and will solicit offers to buy the SecuritiesSecurities only from, and any such Initial Purchaser, its Affiliates and any such persons have complied has offered and will comply with offer, sell or deliver the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Securities only to, (A) persons who it reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) Foreign Purchasers to whom, and under circumstances which, it reasonably believes offers and sales of Securities may be made without registration of the Securities under the Act in reliance upon Regulation S thereunder and who provide to it a letter (a "Regulation S Letter") in the form of Exhibit A hereto. Each Purchaser agrees, with respect to resales made in reliance on Rule 144A, other than through the National Association of Securities Dealers, Inc. PORTAL Market, of any Securities purchased from the Company hereunder, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Securities has been made in reliance upon the exemption from the registration requirements of the Act provided by Rule 144A. Each Purchaser agrees, with respect to resales made in reliance on Regulation S, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice substantially to the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933, as amended (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of the distribution thereof at any time or (ii) otherwise until 40 days after the later of the date of commencement of the offering and the latest closing date, except in either case in accordance with Regulation S under the Securities Act. Terms used above have the meaning given them by Regulation S."
(b) The Purchasers represent and warrant that (i) they have not offered or sold andsold, prior to the date six months after the Closing Date, and will not offer or sell any Securities to persons sell, in the United Kingdom except Kingdom, by means of any document, any Securities other than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (Bii) has they have complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (and the "FSMA") Public Offers of Securities Regulations of 1995 of the United Kingdom with respect of to anything done by it them in relation to the Securities in, from or otherwise involving the United KingdomKingdom and (iii) they have only issued or passed on, and (C) will only communicate issue or cause to be communicated pass on, in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it them in connection with the issue or sale of the Securities to a person who is of the kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the Company;document may otherwise lawfully be issued or passed on.
(vic) such Initial Each Purchaser agrees that, at or prior to confirmation of sales of the Securities, represents and warrants that it is a QIB and that it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under offer the Securities Act. Terms used above have for resale only upon the meaning given to them by Regulation S." Terms used terms and conditions set forth in this Section 7(b) have Agreement and in the meanings given to them by Regulation S.Final Memorandum.
Appears in 3 contracts
Samples: Purchase Agreement (McLeodusa Inc), Purchase Agreement (McLeodusa Inc), Purchase Agreement (McLeodusa Inc)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Subsidiary Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption “Notice to Investors” contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Notes or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
, (iiiii) the Securities Notes have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
Act and (iviii) such Initial Purchaser it has offered the Securities Notes and will offer and sell the Securities Notes (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 2 contracts
Samples: Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants Purchasers agrees with the Issuers (as to itself only) that such Initial Purchaser (i) it is a "qualified institutional buyer buyer" as defined in Rule 144A under the Securities Act Act, (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (iii) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (iiiii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign non-U.S. purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"" contained in the Final Memorandum (or, if the Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 2 contracts
Samples: Purchase Agreement (Appliance Warehouse of America Inc), Purchase Agreement (Coinmach Corp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not solicited and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs QIBs, and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"” and (iii) it will not use or refer to, and represents that it has not used or referred to, any Additional Written Offering Communication without the Parent’s prior consent other than written communications that contain the possible terms of the Securities and/or information that was included (including through incorporation by reference) in the Time of Sale Memorandum or the Final Memorandum.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors any Guarantor that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a)) hereof; accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in the United Kingdom within the meaning of the Public Offers that Member State, except that it may, with effect from and including such date, make an offer of Securities Regulations 1995; to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(B) at any time to any legal entity which has complied two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and will comply with all applicable provisions (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive. For the "FSMA") with respect purposes of anything done by it the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the Company;United Kingdom; and
(vivii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
(c) The Company and the Guarantors agree that the Initial Purchasers may provide copies of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture and the Registration Rights Agreement, to Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Xtract, access to which shall be restricted by Xtract to QIBs.
Appears in 2 contracts
Samples: Purchase Agreement (Nii Holdings Inc), Purchase Agreement (Nii Holdings Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, Purchaser hereby represents and warrants agrees with the Company (as to itself only) that such Initial Purchaser is it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any written communication that constitutes an offer to sell or the solicitation of an offer to buy the Securities other than (i) the Road Show Slides, the Pricing Disclosure Package and the Final Memorandum, (ii) a qualified institutional buyer written communication that contains no “issuer information” (as defined in Rule 144A 433(h)(2) under the Act) that was not included in the Pricing Disclosure Package or the Final Memorandum, (iii) any written communication listed on Annex A hereto or prepared pursuant to Section 5(c) above, (iv) any written communication prepared by such Initial Purchaser and approved by the Company in advance in writing or (v) any written communication relating to or that contains the terms of the Securities Act and/or other information that was included in the Pricing Disclosure Package or the Final Memorandum.
(a "QIB"). b) Each Initial Purchaser, severally Purchaser hereby represents and not jointly, agrees with the Company and the Guarantors (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities ActD) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; (ii) it is a QIB and it will offer the Securities for resale only upon the terms and conditions set forth in this Agreement and the Offering Memorandum and (iii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (Aa) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (Bb) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term terms shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non U.S. beneficial owners (other than an estate or trust)) ); provided, however, that in reliance upon Regulation S under the Securities Act that, in each casecase of this clause (b), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors” contained in the Pricing Disclosure Package and the Final Memorandum.
(bc) Each Initial Purchaser, severally Purchaser hereby represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (ivii) such Initial Purchaser has offered the Securities and it will offer and sell the Securities (a) as part of their its distribution at any time or as and (b) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 2 contracts
Samples: Purchase Agreement (LGI Homes, Inc.), Purchase Agreement (LGI Homes, Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such it is a QIB. The Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Issuers that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United StatesStates (x) persons whom the Initial Purchaser reasonably believes to be QIBs or, QIBs if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchaser that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption "Notice to Investors" contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, the most recent Preliminary Memorandum).
(b) Each The Initial Purchaser, severally Purchaser represents and not jointly, represents, warrants, and agrees warrants with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 1933, as amended (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S.S under the Securities Act." Terms used in this Section 7(b) 9 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 2 contracts
Samples: Purchase Agreement (Affinity Group Holding, Inc.), Purchase Agreement (Affinity Group Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form General Solicitation, other than a permitted communication listed on Schedule II hereto, or those made with the prior written consent of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) Company, or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for sell such Securities only from, in the United States and will offer such Securities only to, to persons that it reasonably believes to be (A) in the case of offers inside the United StatesQIBs, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act thatwhom, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors”.
(b) Each Initial PurchaserPurchaser severally agrees that it will not offer, severally and not jointly, represents, warrants, and agrees with respect to offers and sales sell or deliver any of the Securities in any jurisdiction outside the United States that:
(i) such Initial Purchaser understands except under circumstances that no will result in compliance with the applicable laws thereof, and that it will take at its own expense whatever action has been or will be taken in any jurisdiction by the Company or the Guarantors that would is required to permit a public offering its purchase and resale of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to and the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales resale of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act conversion of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have and resale of the meaning given underlying securities in such jurisdictions.
(c) The Company agrees that the Initial Purchasers may provide copies of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture, the Registration Rights Agreement and the Intercompany Agreements to them Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Regulation S." Terms used in this Section 7(b) have the meanings given Xtract, access to them which shall be restricted by Regulation S.Xtract to QIBs.
Appears in 2 contracts
Samples: Purchase Agreement (NRG Yield, Inc.), Purchase Agreement (NRG Yield, Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, Purchasers represents and warrants (as to itself only) that such Initial Purchaser it is a qualified institutional buyer QIB or an "accredited investor" (as defined in Rule 144A 501 under the Securities Act (a "QIB"Act). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors (as to itself only) that (i) it will not solicit offers forneither it, any of its affiliates (as defined in Rule 501 under the Act) nor any person acting on its behalf, has offered or offer or sell, such sold Securities by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act ; and (ii) it has solicited and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in the case of offers inside the United Statesreliance on Rule 144A, QIBs and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons in reliance on Regulation S under the Act ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) where neither it, its affiliates nor any person acting on its behalf has engaged in reliance upon any "directed selling efforts" (as defined in Regulation S under the Securities Act S); provided, that, in each casethe case of clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Notices to Investors" contained in the Memorandum (or, if the Memorandum is not in existence, in the most recent Memorandum); provided, further, that, notwithstanding the foregoing clause (B), Securities in registered form may be offered, sold and delivered in the United States pursuant to the preceding clause (A). Each of the Initial Purchasers acknowledges and agrees (as to itself only) that, except as permitted by this Agreement, it will not offer, sell or deliver any Securities within the United States or to, or for the account or benefit of, U.S. Persons (i) as part of such Initial Purchaser's distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Notes and the last original issue date of the Notes and that it will send to each dealer or other person receiving a selling concession, fee or other remuneration to which it sells Notes in reliance on Regulation S during such 40-day period a confirmation or other notice setting forth the restrictions on offers and sales of the Securities within the United States or to, or for the account or benefit of, U.S. Persons.
(b) Each of the Initial Purchaser, severally and not jointly, Purchasers represents, warrants, warrants and agrees (as to itself only) with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands States, that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser complied and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
(iii) . Each of the Securities have not been registered under the Securities Act Initial Purchasers represents, warrants and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant agrees as to another exemption from the registration requirements itself that its sale of the Securities offered and sold in reliance on Regulation S and pursuant to Rule 144A is not part of a plan or scheme to evade the registration provisions of the Act;. Terms used in this Section 8 and not defined in this Agreement have the meanings given to them in Regulation S.
(ivc) such Each of the Initial Purchaser has offered the Securities Purchasers further represents, warrants and will offer and sell the Securities agrees (as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts to itself only) that (within the meaning of Regulation Si) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) it has not offered or sold and, prior to the date expiry of a period of six months after from the Closing Dateissue date of the Notes, will not offer or sell any Securities Notes to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (Bii) it has complied only communicated or caused to be communicated and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received by it in connection with the issue or sale of the Securities any Notes in circumstances in which section 21(1) of the FSMA does not apply to the Company;
Issuer or the Guarantors; and (viiii) such Initial Purchaser agrees that, at or prior to confirmation of sales it has complied and will comply with all applicable provisions of the SecuritiesFSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom. Each of the Initial Purchasers represents, warrants and agrees (as to itself only) that (a) it has not offered and will not offer the Notes in the Netherlands other than to persons who trade or invest in securities in the conduct of their profession or trade (which includes banks, securities intermediaries (including dealers and brokers), insurance companies, pension funds, other institutional investors and commercial enterprises which as an ancillary activity regularly invest in securities) or in the Netherlands Antilles and (b) any offer of Notes and each announcement thereof have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration stated and will state that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have Notes are not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may will not be offered and sold within the United States or to, or for the account or benefit of, U.S. other than to persons as part referred to in (a) above. Each Initial Purchaser acknowledges that the Issuers, and for purposes of their distribution at any time, except in accordance with Regulation S (or Rule 144A if availablethe opinions to be delivered to each Initial Purchaser pursuant to Sections 7(a) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section and 7(b) have hereof, counsel to the meanings given Issuers and counsel to them by Regulation S.the Initial Purchasers may rely on the accuracy of the foregoing representations.
Appears in 2 contracts
Samples: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, Purchasers severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors (as to itself only) that (i) it is a qualified institutional buyer within the meaning of Rule 144A under the Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Act; (ii) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) or in any manner involving a “public offering offering” within the meaning of Section 4(24(a)(2) of the Securities Act Act; and (iiiii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, to (A) persons that it whom the Initial Purchaser reasonably believes to be (A) QIBs, and, in the case of offers inside the United Stateseach case, QIBs in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons outside the United States ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors” contained in the Pricing Disclosure Package and the Final Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action the Securities have not been and will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S under the Act or pursuant to an exemption from the registration requirements of the Act; and (ii) it has been offered the Securities and will offer and sell the Securities (A) as part of its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on its behalf have engaged or will be taken engage in any jurisdiction by directed selling efforts (within the Company or the Guarantors that would permit a public offering meaning of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating Regulation S) with respect to the Securities, in and any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser persons have complied and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;the offering restrictions requirement of Regulation S.
(iiic) Each Initial Purchaser severally acknowledges that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;.
(ivd) such Each Initial Purchaser severally agrees that it and each of its affiliates has offered the Securities not entered and will offer and sell the Securities as part of their distribution at not enter into any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor contractual arrangement with any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) investment banking institution with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale distribution of the Securities in circumstances in which section 21(1) except for any such arrangements with the other Initial Purchasers or affiliates of the FSMA does not apply to other Initial Purchasers or with the prior written consent of the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 2 contracts
Samples: Purchase Agreement (Griffon Corp), Purchase Agreement (Griffon Corp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form General Solicitation, other than a permitted communication listed on Schedule II hereto, or those made with the prior written consent of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) Company, or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;; and
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(ivc) such The Company agrees that the Initial Purchaser has offered Purchasers may provide copies of the Securities and will offer and sell Preliminary Memorandum, the Securities as part Time of their distribution at any time or as otherwise permitted in Section 7(a); accordinglySale Memorandum, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, Final Memorandum and any such Initial Purchaserother agreements or documents relating thereto, its Affiliates and any such persons have complied and will comply with including without limitation, the offering restrictions requirement Transaction Documents, to Xtract Research LLC (“Xtract”), following completion of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andthe offering, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 2 contracts
Samples: Purchase Agreement (Infinera Corp), Purchase Agreement (INFINERA Corp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents represents, warrants and warrants agrees that such Initial Purchaser (i) it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointlyan “accredited investor” within the meaning of Rule 501 under the Securities Act, agrees with the Company and the Guarantors that (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act, (iiiii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) QIBs in the case of offers inside the United Statestransactions pursuant to Rule 144A and in connection with each such sale, QIBs it has taken or will take reasonable steps to ensure that such sale is being made in reliance on Rule 144A and (Biv) in the case of it will solicit offers outside the United StatesStates only from, to and will offer such Securities only to, certain persons other than who are not U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries Persons in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) offshore transactions in reliance upon on Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) S. Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Disclosure Package or the Memorandum or any such other material, in all cases at its own expense;, except as provided in Section 6(e).
(iiib) Each Initial Purchaser acknowledges and agrees that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or toCompany and, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under purposes of the Securities Act or opinions to be delivered to the Initial Purchaser pursuant to another exemption from Sections 5(c), 5(d), 5(e) and 5(f) by counsel for the registration requirements Company, counsel for the Guarantor and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the Securities Act;
(iv) such Initial Purchaser has offered the Securities representations and will offer and sell the Securities as part warranties of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning and compliance of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (Awith its agreements, contained in paragraph 7(a) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdomabove, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior hereby consents to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.such reliance.
Appears in 2 contracts
Samples: Purchase Agreement (Nabors Industries LTD), Purchase Agreement (Nabors Industries LTD)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"QIBs.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;.
(ivc) such The Company agrees that the Initial Purchaser has offered Purchasers may provide copies of the Securities and will offer and sell Preliminary Memorandum, the Securities as part Time of their distribution at any time or as otherwise permitted in Section 7(a); accordinglySale Memorandum, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, Final Memorandum and any such Initial Purchaserother agreements or documents relating thereto, its Affiliates and any such persons have complied and will comply with including without limitation, the offering restrictions requirement Indentures, to Xtract Research LLC (“Xtract”), following completion of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andthe offering, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 2 contracts
Samples: Purchase Agreement (Micron Technology Inc), Purchase Agreement (Micron Technology Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, The ------------------------------------------------ Placement Agent represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, The Placement Agent agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities the Units, Notes or Warrants by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities Units, Notes or Warrants only from, and will offer such Securities Units, Notes or Warrants only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"QIBs.
(b) Each Initial Purchaser, severally and not jointly, The Placement Agent represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the SecuritiesUnits, Notes or Warrants, or possession or distribution of either Memorandum or any other offering or publicity material relating to the SecuritiesUnits, Notes or Warrants, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser the Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Units, Notes or Warrants or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities Units, the Notes and the Warrants have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S..
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Subsidiary Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign non-U.S. purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Notice to Investors" contained in the Memorandum (or, if the Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Notes or has in its possession or distributes either the Memorandum or any such other material, in all cases at its own expense;
, (iiiii) the Securities Notes have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
Act and (iviii) such Initial Purchaser it has offered the Securities Notes and will offer and sell the Securities Notes (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to the Issuer and the Guarantors that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Issuer that (i) it will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United StatesQIBs, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries QIBs in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act thatCanada, in each case, that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrantsrepresents and warrants to, and agrees with the Issuer and the Guarantors, with respect to offers and sales outside the United States States, that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company Issuer or the Guarantors Parent that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.,
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or any of the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) neither the Securities nor the Guarantees have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities and the Guarantees covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the final closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, Purchaser severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally to and not jointly, agrees with the Company and the Guarantors that (i) it such Initial Purchaser has not solicited and will not solicit offers for, any offer to buy or offer or sell, such to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in within the meaning of Regulation D under the Securities ActD) or in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Securities Act sold in reliance on Regulation S, by means of any directed selling efforts and (ii) it has solicited and will solicit offers for such to buy the Securities only from, and has offered and will offer such offer, sell or deliver the Securities only to, (A) persons that who it reasonably believes to be qualified institutional buyers (Aas defined in Rule 144A under the Act) in the case of offers inside the United Statesor, QIBs and (B) in the case of offers outside the United Statesif any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such account is a qualified institutional buyer, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers whom notice has been given that such sale or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) delivery is being made in reliance upon Regulation S under the Securities Act thaton Rule 144A, and, in each case, in transactions under Rule 144A, (B) persons who it reasonably believes to be institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D), and who provide to it a letter substantially in the form of Exhibit A hereto or (C) persons to whom, and under circumstances which, it reasonably believes offers and sales of Securities may be made without registration of the Securities under the Act in reliance upon Regulation S thereunder. Each Initial Purchaser also severally represents and warrants and agrees that such Initial Purchaser has offered and will offer to sell the Securities only to, and has solicited and will solicit offers to buy the Securities only from, persons that in purchasing such Securities are will be deemed to have represented and agreed as provided under "Investor Representations and Restrictions on Resale" in the Final Memorandum under the caption "Transfer Restrictions"Exhibit B hereto.
(b) Each Initial Purchaser, Purchaser severally represents and not jointly, represents, warrants, warrants to and agrees with respect to offers and sales outside the United States that:
Company that (i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andsold, prior to the date six months after the Closing Date, and will not offer or sell any Securities to persons in the United Kingdom Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.the
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB")”) and an “accredited investor” as defined in Rule 501(a)(1) under the Securities Act. Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such sell the Securities in the United States only from, and will offer such Securities only to, to persons that it reasonably believes to be (A) QIBs that, in the case of offers inside the United States, QIBs and clause (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trustii)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S..
Appears in 1 contract
Samples: Purchase Agreement (Ezcorp Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally The Purchasers represent and not jointly, represents warrant to and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees agree with the Company and the Guarantors that (i) it they have not solicited and will not solicit offers for, any offer to buy or offer or sell, such to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used in within the meaning of Regulation D under the Securities ActD) or in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Securities Act sold in reliance on Regulation S, by means of any directed selling efforts and (ii) it they have solicited and will solicit offers for such to buy the Securities only from, and have offered and will offer such offer, sell or deliver the Securities only to, persons that it reasonably believes to be (A) persons who they reasonably believe to be qualified institutional buyers (as defined in Rule 144A under the case of offers inside the United StatesAct) or, QIBs and (B) in the case of offers outside the United Statesif any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to them that each such account is a qualified institutional buyer, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers whom notice has been given that such sale or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) delivery is being made in reliance upon Regulation S under the Securities Act thaton Rule 144A, and, in each case, in transactions under Rule 144A, (B) persons who they reasonably believe to be institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D), and who provide to them a letter in the form of Exhibit A hereto or (C) persons to whom, and under circumstances which, they reasonably believe offers and sales of Securities may be made without registration of the Securities under the Act in reliance upon Regulation S thereunder. The Purchasers also represent and warrant and agree that they have offered and will offer to sell the Securities only to, and have solicited and will solicit offers to buy the Securities only from, persons that in purchasing such Securities are will be deemed to have represented and agreed as provided under "Investor Representations and Restrictions on Resale" in the Final Memorandum under the caption "Transfer Restrictions"Exhibit B hereto.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is (x) an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and (y) a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that that: (i) it will not solicit offers for, or offer or sell, such Securities (or any Underlying Securities) by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Time of Sale Memorandum and the Final Memorandum under the caption "“Transfer Restrictions"; Notice to Investors”; and (iii) it will take reasonable steps to ensure that each such person to whom it is soliciting offers for such Securities from, or offering such Securities to, is aware that it is relying on the exemption from registration provided by Rule 144A under the Securities Act.
(b) Each The Company agrees that the Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering Purchasers may provide copies of the SecuritiesPreliminary Memorandum, or possession or distribution the Time of either Sale Memorandum, the Final Memorandum or and any other offering agreements or publicity material documents relating thereto, to the SecuritiesXtract Research LLC (“Xtract”), in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements following completion of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordinglyoffering, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not and will not directly or indirectly solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it has and will solicit offers for such Securities only from, and will offer offer, sell and deliver such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) a limited number of other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("institutional accredited investors") that, prior to their purchase of the Securities, deliver to such Placement Agent a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage engage, directly or indirectly, in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to the Company that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB")”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act. Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (Aa) in the case of offers inside the United States, QIBs and (Bb) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum Circular under the caption "Transfer Restrictions"“Notice to Investors”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum the Preliminary Circular, the Time of Sale Circular, the Final Circular or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum the Preliminary Circular, the Time of Sale Circular, the Final Circular or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (a) as part of their its distribution at any time and (b) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (Aas defined below) has not offered or sold and(each, prior a “Relevant Member State”), an offer to the date six months after the Closing Date, will not offer or sell public of any Securities to persons which are the subject of the offering contemplated by the Time of Sale Offering Circular and the Final Circular may not be made in the United Kingdom that Relevant Member State, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in that an offer to the public in that Relevant Member State of any Securities may be made at any time under the United Kingdom within following exemptions under the meaning Prospectus Directive, if they have been implemented in that Relevant Member State: (a) to any legal entity which is a qualified investor as defined in the Prospectus Directive; (b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the Public Offers 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by the Company for any such offer; or (c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive or supplement a prospectus pursuant to Article 16 of the "FSMA") with respect Prospectus Directive; the expression “an offer of anything done by it Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(Cvi) such Initial Purchaser has represented and agreed that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such The Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors (as to itself only) that (i) it is a qualified institutional buyer within the meaning of Rule 144A under the Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Act; (ii) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of “general solicitation solicitation” or “general advertising advertising” (as those terms are used in Regulation D under the Securities Act) or in any manner involving a “public offering offering” within the meaning of Section 4(24(a)(2) of the Securities Act Act; and (iiiii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchaser that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons per- sons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors” contained in the Pricing Disclosure Package and the Final Memorandum.
(b) Each The Initial Purchaser, severally Purchaser represents and not jointly, represents, warrants, and agrees warrants with respect to offers and sales outside the United States that (i) the Securities have not been and will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S under the Act or pursuant to an exemption from the registration requirements of the Act; and (ii) it has offered the Securities and will offer and sell the Securities (A) as part of its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on its behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(c) The Initial Purchaser represents and warrants and agrees with the Company and the Guarantors that:
(i) such in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not made and will not make an offer of the New Notes in that Relevant Member State other than (i) to any legal entity which a qualified investor as defined in the Prospectus Directive, (ii) to fewer than 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives of the Initial Purchaser understands for any such offer, or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no action has been such offer of Securities shall require the Company to publish a prospectus pursuant to Article 3 of the Prospectus Directive or will be taken supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of New Notes to the public” in relation to any Notes in any jurisdiction Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the New Notes to be offered so as to enable an investor to decide to purchase or subscribe to the New Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State;
(a) it is a person whose ordinary activities involve it in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of its business and (b) it has not offered or sold and will not offer or sell the Securities other than to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses where the issue of the Securities would otherwise constitute a contravention of Section 19 of the Financial Services and Markets Act of 2000 (UK) (“FSMA”) by the Company;
(iii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;Guarantors; and
(iiiv) such Initial Purchaser it has complied and will comply with all applicable laws and regulations provisions of the FSMA with respect to anything done by it in each jurisdiction in which it acquiresrelation to the Securities in, offers, sells from or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;otherwise involving the United Kingdom.
(iiid) The Initial Purchaser acknowledges that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;.
(ive) such The Initial Purchaser agrees that it and each of its affiliates has offered the Securities not entered and will offer and sell the Securities as part of their distribution at not enter into any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor contractual arrangement with any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) investment banking institution with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale distribution of the Securities in circumstances in which section 21(1) except with the prior written consent of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form General Solicitation, other than a permitted communication listed on Schedule II hereto, or those made with the prior written consent of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) Company, or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for sell such Securities only from, and will offer such Securities only to, to persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities Securities, are deemed to have represented and agreed as provided in the Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not made and will not make an offer of Securities to the public in that Relevant Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 3 of the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser has offered to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities and will offer and sell the Securities to be offered so as part of their distribution at any time to enable an investor to decide to purchase or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any such Initial Purchaserrelevant implementing measure in that Member State, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;expression “2010 PD Amending Directive” means Directive 2010/73/EU.
(v) such Initial Purchaser (A) has not offered represented and agreed that it has only communicated or sold and, prior caused to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted be communicated and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the Company;United Kingdom; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of understands that the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 (the "Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities Act") and may not be offered and sold within the United States or to, in Japan or for the account or benefit of, U.S. persons as part of their distribution at any time, resident thereof except in accordance with Regulation S (or Rule 144A if available) under pursuant to any exemption from the registration requirements of the Securities Act. Terms used above have and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law.
(c) The Company agrees that the meaning given Initial Purchasers may provide copies of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture to them Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Regulation S." Terms used in this Section 7(b) have the meanings given Xtract, access to them which shall be restricted by Regulation S.Xtract to QIBs.
Appears in 1 contract
Samples: Purchase Agreement (Enernoc Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors Acquisition that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs QIBs, and (B) with respect to the Notes only, in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," FOREIGN PURCHASERS", which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer RestrictionsTRANSFER RESTRICTIONS".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrantswarrants to Acquisition and the Company, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by Acquisition or the Company or the Guarantors that would permit a public offering of the SecuritiesNotes, or possession or distribution of either Memorandum or any other offering or publicity material relating to the SecuritiesNotes, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Notes or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities Notes have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities Notes and will offer and sell the Securities Notes (A) as part of their its distribution at any time time, (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a)) or (C) pursuant to another exemption from the registration requirements of the Securities Act; accordingly, neither none of such Initial PurchaserPlacement Agent, its Affiliates nor or any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities Notes to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of to anything done by it in relation to the Securities Notes in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities Notes to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Notes have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Notes in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the SecuritiesNotes, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities Notes from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities Notes covered hereby have not been registered under the U.S. Securities Act of 1933 1933, as amended (the "Securities ActSECURITIES ACT") ), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.S. In addition to the foregoing, each Placement Agent acknowledges and agrees that Acquisition and, for purposes of the opinions to be delivered to the Placement Agents pursuant to Sections 5(c), (d) and (e), counsel for Acquisition, the Company and the Placement Agents, respectively, may rely upon the accuracy and truth of the representations and warranties of the Placement Agents and their compliance with their agreements contained in this Section 7, and each Placement Agent hereby consents to such reliance.
Appears in 1 contract
Samples: Placement Agreement (Sailors Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or 11 distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from from, or a transaction not subject to, the registration requirements of the Securities ActAct and any other applicable securities laws;
(iviii) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(viv) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 Act 2000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, ; and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(v) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Act Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Chevron Phillips Chemical Co Lp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors”.
(ba) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Disclosure Package, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Disclosure Package, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Member State, except that it may, with effect from and including such date, make an offer of Securities to the United Kingdom within public in that Member State:
(1) at any time to legal entities which are authorized or regulated to operate in the meaning financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(2) at any time to any legal entity which has two or more of (i) an average of at least 250 employees during the last financial year; (ii) a total balance sheet of more than €43,000,000 and (iii) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(3) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Public Offers Prospectus Directive. For the purposes of the above, the expression an “offer of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of to the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.,
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (x) QIBs or (y) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Placement Agent a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Placement Agreement (Atlas Air Inc)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it is either a QIB or an “accredited investor” within the meaning of Rule 501(a) under Regulation D under the Act, in either case with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Securities; (ii) it is purchasing the Securities pursuant to a private sale exempt from registration under the Act; (iii) in connection with offers of the Securities purchased by such Initial Purchaser hereunder on the terms set forth in the Final Memorandum, as amended or supplemented, will solicit offers to buy the Securities only from, and will offer to sell and will sell the Securities only to, the Eligible Purchasers (as defined below) in accordance with this Agreement and on the terms contemplated by the Final Memorandum; (iv) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (iiv) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption “Transfer Restrictions” contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, in the most recent Memorandum) (each person specified in clauses (A) and (B) being referred to herein as an “Eligible Purchaser”).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any amendment or supplement thereto or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;S.
(vc) such Each of the Initial Purchaser Purchasers hereby represents, warrants and agrees (Aas to itself only) that:
(i) it has not offered or sold and, prior to the date expiry of a period of six months after from the Closing Dateissue date of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes purpose of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; ;
(Bii) it has complied only communicated or caused to be communicated and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the “FSMA”) received by it in connection with the issue or sale of the any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;; and
(viiii) such Initial Purchaser agrees that, at or prior to confirmation of sales it has complied and will comply with all applicable provisions of the SecuritiesFSMA with respect to anything done by it in relation to the Securities in, it will have sent from or otherwise involving the United Kingdom. Each of the Initial Purchasers understands that the Company and, for purposes of the opinions to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during be delivered to the restricted period a confirmation or notice Initial Purchasers pursuant to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act"Sections 7(a) and may not be offered 7(b) hereof, counsel to the Company, counsel to Intelsat Global Service Corporation and sold within counsel to the United States or toInitial Purchasers, or for will rely upon the account or benefit ofaccuracy and truth of the foregoing representations, U.S. persons as part warranties and agreements and each of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities ActInitial Purchasers hereby consents to such reliance. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Intelsat LTD)
Offering of Securities; Restrictions on Transfer. (a) Each The Company understands that the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under Purchasers intend to offer the Securities Act (a "QIB")for resale on the terms set forth in the Time of Sale Memorandum. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees with the Company and the Guarantors that that:
(i) it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”), an accredited investor within the meaning of Rule 501(a) under the Securities Act and an accredited investor within the meaning of NI 45-106 with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risk of an investment in the Notes;
(ii) it or any affiliate thereof (if such affiliate offers and sells Securities in accordance with this Agreement) is duly registered or licensed or exempt from any such requirement in those jurisdictions in which it is required to be so registered or licensed in order to offer the Securities for resale;
(iii) without the Representatives’ prior consent, it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such the Securities by means of any form of general solicitation or general advertising (as those terms are used in within the meaning of Rule 502(c) of Regulation D under the Securities ActAct (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser it has not solicited offers for, or offered the Securities or sold, and will not solicit offers for, or offer and sell or sell, the Securities as part of their distribution at any time or as otherwise permitted initial offering except to persons whom it reasonably believes to be QIBs in Section 7(a); accordinglytransactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged it has taken or will engage take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;reliance on Rule 144A; and
(v) such Initial Purchaser (A) it has not solicited offers for, or offered or sold andsold, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an solicit offers for, or offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to or sell, the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any timeinitial offering to persons resident in Canada unless it has provided a copy of the Preliminary Memorandum and the Final Memorandum to such persons and except to persons:
(A) which are not individuals;
(B) whom it reasonably believes are “accredited investors” as defined in Section 1.1 of National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) or subsection 73.3(1) of the Securities Act (Ontario) (the “OSA”), except as applicable, and (1) whom are either purchasing the Securities as principal for their own account, or are deemed to be purchasing the Securities as principal for their own account in accordance with Regulation S Canadian Securities Laws and not as agent for the benefit of another person; (2) if they are an “accredited investors” in reliance on paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106, such person was not created or Rule 144A if available) under used solely to purchase or hold the Securities Act. Terms used above have as an “accredited investor” as described under that paragraph (m); and (3) whom are not purchasing the meaning given Securities pursuant to them any of (i) subsections (e), (e.1), (j), (j.1), (k) or (l) of the definition of “accredited investor” in Section 1.1 of NI 45-106, subsections (d), (q) or (v) of the definition of “accredited investor” in Section 1.1 of NI 45-106, as an “individual” or, subsections (d), (i) or (j) of the definition of “accredited investor” in Section 73.3(1) of the OSA as a “person”; and
(C) which are “permitted clients” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) if any Initial Purchaser is relying on the international dealer exemption pursuant to NI 31-103.
(b) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(d) and 5(j) hereof, counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by Regulation S." Terms used the Initial Purchasers with their agreements, contained in this Section 7(bparagraph (a) have above, and each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the meanings given Initial Purchasers may, in accordance with the Securities Act and if applicable Canadian Securities Laws, offer and sell Securities to them or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by Regulation S.it to or through any Initial Purchaser; provided such affiliate is duly registered or licensed or exempt from any such requirement in those jurisdictions in which it is required to be so registered or licensed in order to offer the Securities for resale.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, The Placement Agent represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, The Placement Agent agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to the Placement Agent a letter containing the representations and agreements set forth in Exhibit A to the Final Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which FOREIGN PURCHASERS",which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, The Placement Agent represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser it will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaserthe Placement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser it has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") Act 1986 with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser it understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) it agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 1933, as amended (the "Securities ActSECURITIES ACT") ), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b8(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," ", which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or and the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
; (iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from from, or a transaction not subject to, the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, Act and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation Sother applicable securities laws;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Chevron Phillips Chemical Co LLC)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally The Purchaser acknowledges and not jointly, represents and warrants agrees that such Initial Purchaser is a qualified institutional buyer as defined the Shares issuable in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees accordance with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form terms of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities this Stock Purchase Agreement have not been and will not be registered under the Securities Act and have not been and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. United States persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
(iv) such Initial . The Purchaser has offered the Securities represents and agrees that it/he will offer and sell the Shares only in accordance with (i) Regulation S, (ii) an exemption from registration under the Securities as part Act, or (iii) an effective registration statement under the Securities Act. Without limiting the generality of their distribution at any time the foregoing, the Purchaser agrees that it/he will not transfer the Shares on or as otherwise permitted in Section 7(a); accordinglyprior to forty (40) days after the Closing Date.
(b) The Purchaser further acknowledges and agrees that neither it/he nor its/his affiliates, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have its/his behalf, has engaged or will engage in any directed selling efforts (within the meaning of as defined in Regulation S) with respect to the SecuritiesShares, and any such Initial the Purchaser, its Affiliates its/his affiliates and any such all persons acting on the Purchaser's behalf have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial S. The Purchaser agrees that, at or prior to confirmation of sales any sale of Shares the Securities, it Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities such Shares from it Purchaser during the restricted period a confirmation or notice to substantially the following effect: "The Securities securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution thereof at any timetime or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning meanings given to them by Regulation S."
(c) The Purchaser is not a "distributor" as that term is used in Regulation S.
(d) The Purchaser agrees that it/he will not offer or sell the Shares purchased from the Company hereunder by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act).
(e) The Purchaser represents, warrants and agrees that it/he will not offer or sell any Shares in any jurisdiction except under circumstances that will result in compliance with the applicable laws thereof, and that the Purchaser will take its/his own expense whatever action is required to permit offers, sales or the purchase and resale by it/them of the Shares. The Purchaser understands that no action has been taken by the Company to permit a public or private offering in any jurisdiction outside the United States where action would be required for such purpose.
(f) The Purchaser represents and agrees that any activities with respect to the Shares or the Common Stock in connection with the distribution of the Shares will be conducted in compliance with the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act") including without limitation Rule 10b-7 under the Exchange Act to the extent such Rule is applicable thereto.
(1) The Purchaser agrees that any distributor shall agree in writing that all offers and sales of the Shares prior to the expiration of the restricted period specified in Rule 903(c)(2) or (3), as applicable, shall be made only: in accordance with the provisions of Rule 903 or 904; pursuant to registration of the Shares under the Securities Act; or pursuant to an available exemption from the registration requirements of the Securities Act; and
(2) All offering materials and documents (other than press releases) used in connection with offers and sales of the Shares prior to the expiration of the restricted period specified in Rule 903(c)(2) or (3), as applicable, shall include statements to the effect that the Shares have not been registered under the Securities Act and may not be offered or sold in the United States or to U.S. persons (other than distributors) unless the Shares are registered under the Securities Act, or an exemption from the registration requirements of the Securities Act is available. Such statements shall appear:
(i) on the cover or inside cover page of any prospectus or offering circular used in connection with the offer or sale of the Shares;
(ii) in the underwriting section of any prospectus or offering circular used in connection with the offer or sale of the Shares;
(iii) in any advertisement made or issued by the issuer, any distributor, any of their respective affiliates, or any person acting on behalf of any of the foregoing. Such statements may appear in summary form on prospectus cover pages and in advertisements.
(3) The Purchaser acknowledges and agrees that any offer or sale of the Shares, if made prior to the expiration of a 40-day restricted period, shall not be made to a U.S. person or for the account or benefit of a U.S. person (other than a distributor).
(4) The Purchaser acknowledges and agrees that any distributor selling Shares to a distributor, a dealer, as defined in Section 2(12) of the Securities Act, or a person receiving a selling concession, fee or other remuneration in respect of the securities sold, prior to the expiration of a 40-day restricted period, shall agree to send a confirmation or other notice to the purchaser stating that the purchaser is subject to the same restrictions on offers and sales that apply to a distributor.
(h) The Purchaser agrees that in the case of an offer or sale of Shares prior to the expiration of the restricted period specified in Rule 903(c)(2) or (3), a applicable, by a dealer, as defined in Section 2(12) of the Securities Act, or a person receiving a selling concession, fee or other remuneration in respect of the securities offered or sold:
(i) neither the seller nor any person acting on his behalf knows that the offeree or buyer of the securities is a U.S. person; and
(ii) if the seller or any person acting on the seller's behalf knows that the Purchaser is a dealer, as defined in Section 2(12) of the Securities Act, or is a person receiving a selling concession, fee or other remuneration in respect of the Shares sold, the seller or a person acting on the seller's behalf sends to the Purchaser a confirmation or other notice stating that the Shares may be offered and sold during the restricted period only: in accordance with the provisions of Regulation S; pursuant to registration of the securities under the Securities Act; or pursuant to an available exemption from the registration requirements of the Securities Act. Terms used in this Section 7(b) 8 and Section 5 have the meanings given to them by Regulation S.S, unless otherwise indicated. The Purchasers agree to indemnify and hold the Company, its officers, directors, attorneys, representatives, and shareholders, or any person who may be deemed to control the Company, harmless from any loss, liability, claim, damage or expense, arising out of the inaccuracy of any of the Purchasers' representations, warranties or statements or the breach of any of the agreements contained herein to the extent, but only to the extent, that such loss, liability, claim, damage or expense results primarily from the Purchasers' gross negligence, recklessness or bad faith with respect to such representation, warranty, statement or agreement.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (x) QIBs or (y) other institutional accredited investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act) ("institutional accredited investors") that, prior to their purchase of the Securities, deliver to such Placement Agent a letter containing the representations and agreements set forth in Annex A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the Closing Date only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a6(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement requirements of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, ; and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the closing date, except in either case in accordance with Regulation S (or Rule 144A 144A, if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b6(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors Issuers that (i) it will not solicit offers for, or offer or sell, such Securities Units, Notes or Warrants by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities Units, Notes, or Warrants only from, and will offer such Securities Units, Notes or Warrants only to, persons that it reasonably believes to be (A) in A)in the case of offers inside the United States, (x) QIBs or (y) other institutional accredited investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act) ("Institutional Accredited Investors") that, prior to their purchase of the Units, deliver to such Placement Agent a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," ", which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities Units, Notes or Warrants are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by either of the Company or the Guarantors Issuers that would permit a public pubic offering of the SecuritiesUnits, Notes or Warrants or possession or distribution of either Memorandum or any other offering or publicity material relating to the SecuritiesUnits, Notes or Warrants in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Units, Notes or Warrants or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities Units, the Notes and the Warrants have not been and will not be registered under the Securities Act and may not be offered or sold within the United States except pursuant to an exemption from the registration requirements of the Securities Act, or outside the United States except to foreign purchasers in accordance with Regulation S under the Securities Act;
(iv) such Placement Agent has not offered the Units, the Notes or the Warrants and will not offer and sell the Units, the Notes or the Warrants (A) as part of its distribution at any time or (B) otherwise until 40 days with respect to the Notes and one year after the later of the commencement of the offering and the Closing Date with respect to the Warrants, only in accordance with Rule 903 of Regulation S or another exemption from the registration requirements of the Securities Act, and it will send to any dealer to whom it sells Notes and Warrants during such period a confirmation or other notice setting forth the restrictions on offers and sales of the Units within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordinglyPersons. Accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any prohibited directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesUnits, the Notes or the Warrants, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement requirements of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, and will not offer or sell any Securities of the Units, Notes or Warrants to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 (the "Regulations"); (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (and the "FSMA") Regulations with respect of to anything done by it in relation to the Securities Units, the Notes or the Warrants in, from or otherwise involving the United Kingdom, ; and (C) only issued or passed on and will only communicate issue or cause pass on to be communicated any invitation or inducement to engage person in investment activity (within the meaning of section 21 of the FSMA) United Kingdom any document received by it in connection with the issue or sale of the Securities Units, the Notes or the Warrants if that person is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995 or is a person to the Company;whom such document may otherwise lawfully be issued or passed on; and
(vi) such Initial Purchaser agrees thatPlacement Agent understands that the Units, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during Notes and the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby Warrants have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 Japan, and represents that it has not offered or sold, and agrees that it will not offer or sell, any Units, Notes or Warrants directly or indirectly in Japan or to any resident of Japan except (A) pursuant to an exemption from the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part registration requirements of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Actand Exchange Law of Japan and (B) in compliance with any other applicable requirements of Japanese law. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 6 have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (x) QIBs or (y) other institutional accredited investors (as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act) ("institutional accredited investors") that, prior to their purchase of the Securities, deliver to such Placement Agent a letter containing the representations and agreements set forth in Appendix A-1 to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," ", which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or would permit the possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expenseexpense (notwithstanding anything to the contrary set forth in Section 5(e));
(iii) the Securities have not been and will not be registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordinglyanother exemption from the registration requirements of the Securities Act. Accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement requirements of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, and will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 (the "Regulations"); (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (and the "FSMA") Regulations with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, ; and (C) only issued or passed on and will only communicate issue or cause pass on to be communicated any invitation or inducement to engage person in investment activity (within the meaning of section 21 of the FSMA) United Kingdom any document received by it in connection with the issue or sale of the Securities if that person is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Company;whom such document may otherwise lawfully be issued or passed on; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of Placement Agent understands that the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 Japan (or any other securities law of Japan), and represents that it has not offered or sold, and agrees that it will not offer or sell, any Securities, directly or indirectly in Japan or to any resident of Japan except (A) pursuant to an exemption from the "registration requirements of the Securities Act"and Exchange Law of Japan (and any other applicable securities law of Japan) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part (B) in compliance with any other applicable requirements of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities ActJapanese law. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 6 have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants (as to itself only) that such it is a QIB and that it is not acquiring the Securities with any present intention of offering or selling any of the Securities in any transaction that would violate the Act or the securities laws of any state of the United States or any other applicable jurisdiction. The Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or in a manner that the initial purchaser reasonably believes; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchaser that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons in reliance upon Regulation S of the Act ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"" contained in the Final Memorandum (or, if the Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each The Initial Purchaser, severally Purchaser represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the Securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S." Terms used in this Section 7(b8(b) and not defined in this Agreement have the meanings given to them by in Regulation S.S. The Initial Purchaser acknowledges that the Company, and for purposes of the opinions to be delivered to the Initial Purchaser pursuant to this Agreement, counsel to the Company and counsel to the Initial Purchaser, will rely upon the accuracy and truth of the foregoing representations, and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company Issuers and the Guarantors (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such Securities the Notes by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersNON-U.S. PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption "Notice to Investors" contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements re- quirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents represents, warrants, and warrants agrees that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a)) hereof; accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;; and
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchaser agrees with the Company and the Guarantors Issuers that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom such Ini- tial Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to such Initial Purchaser that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing Securities such Securities persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Notice to Investors" contained in the Final Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account ac- count or benefit of, U.S. persons (i) as part of their the distribution of the securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S." Terms used in this Section 7(b) 9 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such it is a QIB. The Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United StatesStates (x) persons whom the Initial Purchaser reasonably believes to be QIBs or, QIBs if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchaser that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and, in each case, in transactions under Rule 144A or (y) persons whom the Initial Purchaser reasonably believes to be Accredited Investors and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption "Notice to Investors" contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, the most recent Preliminary Memorandum).
(b) Each The Initial Purchaser, severally Purchaser represents and not jointly, represents, warrants, and agrees warrants with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 1933, as amended (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S.S under the Securities Act." Terms used in this Section 7(b) 9 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S..
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be be, (A1) QIBs or (2) other institutional accredited investors (as defined in the case of offers inside the United StatesRule 501(a)(1), QIBs and (B2), (3) in the case of offers outside the United States, to persons other than U.S. persons or ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)7) in reliance upon Regulation S under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS")) that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article II(3) of the FSMA does not apply Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Company;whom such document may otherwise lawfully be issued or passed on; and
(viv) such Initial Purchaser agrees that, at or prior to confirmation of sales of understands that the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 (the "Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities Act") and may not be offered and sold within the United States or to, in Japan or for the account or benefit of, U.S. persons as part of their distribution at any time, resident thereof except in accordance with Regulation S (or Rule 144A if available) under pursuant to any exemption from the registration requirements of the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used and Exchange Law of Japan and otherwise in this Section 7(b) have the meanings given to them by Regulation S.compliance with applicable provisions of Japanese law.
Appears in 1 contract
Samples: Purchase Agreement (Aviron)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of the Time of Sale Memorandum or either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iviii) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(iv) such Initial Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Member State”), represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not made and will not make an offer of Securities to the public in that Member State, except that it may, with effect from and including such date, make an offer of Securities to the public in that Member State:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by the Issuer for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Notes shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive; For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "“FSMA"”) with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (CB) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;Company and the Guarantors; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted distribution compliance period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b8(b) have the meanings given to them by Regulation S.S, unless otherwise indicated.
(c) Each Initial Purchaser, severally and not jointly, agrees and understands that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 5(c) hereof, counsel to the Company and the Guarantors, respectively, may rely on the accuracy and truth of the foregoing representations, warranties and covenants in this Section 8 and the Initial Purchasers and the Company hereby consent to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (Seitel Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, The Agent acknowledges and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been and will not be registered under the Securities Act and have not been and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. United States persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities . The Agent represents and agrees that it will offer and sell the Securities as part only in accordance with (i) Regulation S, (ii) an exemption from registration under the Securities Act, or (iii) an effective registration statement under the Securities Act. Without limiting the generality of their distribution at any time or as otherwise permitted in Section 7(a); accordinglythe foregoing, the Agent agrees that it will not transfer the Securities prior to forty (40) days after the Closing Date.
(b) The Agent further acknowledges and agrees that neither such Initial Purchaserit nor its affiliates, its Affiliates nor any persons acting on its or their behalf have behalf, has engaged or will engage in any directed selling efforts (within the meaning of as defined in Regulation S) with respect to the Securities, and any such Initial Purchaserthe Agent, its Affiliates affiliates and any such all persons acting on the Agent's behalf have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser S. The Agent agrees that, at or prior to confirmation of sales any sale of Securities the Securities, it Agent will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases such Securities from it the Agent during the restricted period a confirmation or notice to substantially the following effect: "The Securities securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution thereof at any timetime or (ii) otherwise until 40 days after the later of the date of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S."
(c) The Agent is not a "distributor" as that term is used in Regulation S.
(d) The Agent agrees that it will not offer or sell the Securities purchased from the Company hereunder or pursuant to the Agent Warrant by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act).
(e) The Agent represents, warrants and agrees that it will not offer or sell any Securities in any jurisdiction except under circumstances that will result in compliance with the applicable laws thereof, and that the Agent will take at its own expense whatever action is required to permit offers, sales or the purchase and resale by them of the Securities. The Agent understands that no action has been taken by the Company to permit a public or private offering in any jurisdiction outside the United States where action would be required for such purpose.
(f) The Agent represents and agrees that any activities with respect to the Securities or the Common Stock in connection with the distribution of the Securities will be conducted in compliance with the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act") including without limitation Rule 10b-7 under the Exchange Act to the extent such Rule is applicable thereto.
(1) The Agent agrees that any distributor shall agree in writing that all offers and sales of the Securities prior to the expiration of the restricted period specified in Rule 903(c)(2) or (3), as applicable, shall be made only: in accordance with the provisions of Rule 903 or 904; pursuant to registration of the Securities under the Securities Act; or pursuant to an available exemption from the registration requirements of the Securities Act; and
(2) All offering materials and documents (other than press releases) used in connection with offers and sales of
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter substantially in the form set forth in Appendix III to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) other wise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior to confirmation confirma- tion of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a 11 13 public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such each Initial Purchaser represents and agrees that (Aa) it has not offered or sold sold, and, prior to the date expiration of the period of six months after from the Closing Dateclosing date for the issue of the Securities, will not offer or sell any Securities to persons in the United Kingdom Kingdom, except to those persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit purpose of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to the Issuer and the Guarantors that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Issuer that (i) it will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Final Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each Initial Purchaser, severally and not jointly, represents, warrantsrepresents and warrants to, and agrees with, with respect to offers and sales outside the United States States, the Issuer and the Guarantors that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company Issuer or the Guarantors Parent that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 (as amended); (B) has complied only communicated or caused to be communicated and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the Financial Services and Markets Act of 2000 (the "FSMA")) received by it in connection with the issue or sale of the any Securities in circumstances in which section Section 21(1) of the FSMA does not apply to the Company;Issuer or the Guarantors; and (C) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it such Initial Purchaser will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the final closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S."
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act, (ii) it will sell such Securities in the United States only to persons that it reasonably believes to be QIBs, and (iii) in the case of offers outside the United States it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees (on behalf of itself and any person acting on their behalf) with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andPurchaser, prior in relation to each Member State of the date six months after the Closing Date, will not offer or sell any Securities to persons in European Economic Area and the United Kingdom except to persons whose ordinary activities involve them in acquiring(each, holdinga “Relevant State”), managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have has not resulted made and will not result in make an offer of Securities to the public in that Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; Prospectus Regulation;
(B) has complied and will comply with all applicable provisions to fewer than 150 natural or legal persons (other than qualified investors as defined under the Prospectus Regulation), subject to obtaining the prior consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Financial Services and Markets Xxx 0000 Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 1(4) of the "FSMA") with respect Prospectus Regulation, provided that no such offer of anything done by it Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation. For the purposes of the above, the expression an “offer of Securities to the public” in relation to the Securities in, from in any Relevant State means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or otherwise involving the United Kingdomsubscribe for any Securities, and the expression “Prospectus Regulation” means Regulation (CEU) 2017/1129.
(vi) such Initial Purchaser has represented and agreed that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, Purchasers represents and warrants (as to itself only) that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (x) persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A or (y) a limited number of other institutional investors reasonably believed by the Initial Purchasers to be Accredited Investors that, prior to their purchase of the Securities, deliver to the Initial Purchasers a letter containing the representations and agreements set forth in Annex A to the Final Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons " contained in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.Final Memorandum.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to each of the Company and the Guarantors that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with each of the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act, (ii) it will sell such Securities only to persons that it reasonably believes to be QIBs, and (iii) in the case of offers outside the United States it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," persons, which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or 144A, Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iviii) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(viv) such Initial Purchaser in relation to each Member State of the European Economic Area (A) a “Member State”), it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; Prospectus Directive;
(B) has complied and will comply with all applicable provisions to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Financial Services and Markets Xxx 0000 Representatives on behalf of the Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 3 of the "FSMA") with respect Prospectus Directive, provided that no such offer of anything done by it Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe for the Securities, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive), and includes any relevant implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 3010/73/EU.
(Cv) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vi) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and it has not offered or sold, and agrees thatnot to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Initial Purchaser understands that none of the Preliminary Memorandum, the Pricing Supplement, any Additional Written Offering Communication or the Final Memorandum (or any amendment or supplement thereto) or any other document or material has been registered as a prospectus with the Monetary Authority of Singapore and the Preliminary Memorandum, the Pricing Supplement, any Additional Written Offering Communication or the Final Memorandum (or any amendment or supplement thereto) or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities may not be circulated or distributed, and the Securities may not be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore, other than:
(A) to an institutional investor (as defined in Section 4A of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”)) under Section 274 of the SFA;
(B) to a relevant person (as defined in Section 275(2) of the SFA ) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA; or
(C) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA, in each case subject to conditions set forth in the SFA.
(viii) such Initial Purchaser understands that the Securities may not be offered or sold in Hong Kong by means of any document other than:
(A) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) (“Companies (Winding Up and Miscellaneous Provisions) Ordinance”) or which do not constitute an invitation to the public within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (“Securities and Futures Ordinance”);
(B) to “professional investors” as defined in the Securities and Futures Ordinance and any rules made thereunder; or
(C) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and no advertisement, invitation or document relating to the Securities may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to notes which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong Kong as defined in the Securities and Futures Ordinance and any rules made thereunder.
(ix) such Initial Purchaser understands that the Securities may only be sold in Canada to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations; and
(x) at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used but not defined in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, Purchasers represents and warrants (as to itself only) that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) ); provided, however, that in reliance upon Regulation S under the Securities Act that, in each casecase of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Notice to Investors" contained in the Final Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordinglyaccordance with Rule 903 of Regulation S. Accordingly, neither such Initial PurchaserPurchaser nor its affiliates, its Affiliates nor any persons acting on its or their behalf behalf, have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates affiliates and any such persons all per sons acting on its or their behalf have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Selling Noteholder that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs QIBs, and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors Selling Noteholder that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a10(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Relevant Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has complied and will comply with all applicable provisions implemented the relevant provision of the Financial Services and Markets Xxx 0000 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the "FSMA"Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representatives on behalf of the Initial Purchasers for any such offer; or
(C) with respect in any other circumstances falling within Article 3 of anything done by it the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe for the Securities, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 3010/73/EU.
(Cvi) such Initial Purchaser has represented and agreed that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us, and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b10 (b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (AbbVie Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs persons whom the Initial Purchasers reasonably believe to be qualified institutional buyers within the meaning of Rule 144A under the Act (each, a “QIB”) or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon compliance with Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Act.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (ivii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each The Initial Purchaser, severally and not jointly, Purchaser agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"”. As used in this Section 7(a), the terms “United States” and “U.S. Person” have the meanings set forth in Regulation S under the Securities Act.
(b) Each The Initial Purchaser, severally and not jointly, Purchaser represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in the United Kingdom within the meaning of the Public Offers that Member State, except that it may, with effect from and including such date, make an offer of Securities Regulations 1995; to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(B) at any time to any legal entity which has complied two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and will comply with all applicable provisions (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive. For the "FSMA") with respect purposes of anything done by it the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Subsidiary Guarantors (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such Securities the Notes by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign non-U.S. purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption "Notice to Investors" contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be -27- offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("institutional accredited investors") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
; (ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
; (iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
; (iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
; (v) such Initial Purchaser has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to the Company;
whom such document may otherwise lawfully be issued or passed on; (vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S."
Appears in 1 contract
Samples: Purchase Agreement (Conectiv)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally You represent and not jointly, represents and warrants warrant that such Initial Purchaser is you are a qualified institutional buyer as defined in within the meaning of Rule 144A under the Securities Act (a "QIB")Act. Each Initial Purchaser, severally and not jointly, agrees You agree with the Company and the Guarantors Issuer that (i) it you will not solicit offers for, or offer or to sell, such Securities the Debentures by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it you will solicit offers for such Securities the Debentures only from, and will offer such Securities the Debentures only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and persons you reasonably believe to be qualified institutional buyers or (B) in persons to whom you reasonably believe offers and sales of the case Debentures may be made without registration of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in Debentures under the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) Securities Act in reliance upon Regulation S under thereunder. You also agree that you will offer the Securities Act thatDebentures only to, in each caseand will solicit offers for the Debentures only from, persons that in purchasing such Securities are Debentures will be deemed to have represented and agreed as provided in the Final Offering Memorandum in the second paragraph under the caption "Transfer Restrictions"" (to the extent such representations are applicable to the purchaser concerned).
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities The Debentures have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has . You represent that you have offered the Securities Debentures and will offer and sell the Securities Debentures (i) as part of their distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date (or Option Closing Date, if later), only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordinglypursuant to paragraph (a) above. Accordingly, neither such Initial Purchaseryou, its Affiliates your affiliates nor any persons acting on its your or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesDebentures, and any such Initial Purchaser, its Affiliates you and any such persons they have complied and will comply with the offering restrictions requirement of Regulation S;S.
(vc) such Initial Purchaser You represent and, during the period of six months from the date of the Offering Memorandum, agree that (A1) has you have not offered or sold and, prior to the date six months after the Closing Date, and will not offer or sell any Securities Debentures to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 ("Regulations"); (B2) has you have complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (and the "FSMA") Regulations with respect of to anything done by it you in relation to the Securities Debentures in, from or otherwise involving the United Kingdom, ; and (C3) you have only issued or passed on and will only communicate issue or cause pass on to be communicated any invitation or inducement to engage person in investment activity (within the meaning of section 21 of the FSMA) United Kingdom any document received by it you in connection with the issue of the Debentures if that person is of a kind described in Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 or sale is a person to whom such document may otherwise lawfully be issued or passed on.
(d) You understand that the Debentures have not been and will not be registered under the Securities and Exchange Law of Japan, and represent that you have not offered or sold, and agree that you will not offer or sell, any Debentures, directly or indirectly in Japan or to or from any resident of Japan except (i) pursuant to an exemption from the registration requirements of the Securities and Exchange Law of Japan and (ii) in circumstances in which section 21(1) compliance with any other applicable requirements of the FSMA does not apply to the Company;Japanese law.
(vie) such Initial Purchaser agrees You agree that, at or prior to confirmation of sales sale of the SecuritiesDebentures (other than a sale pursuant to subclauses (A) or (C) of clause "ii" of paragraph (a) above), it you will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities Debentures from it you during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the final closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 5 have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A an "accredited investor" within the meaning of Regulation D under the Securities Act (a "QIB")Act. Each The Initial PurchaserPurchaser represents, severally warrants and not jointly, agrees with the Company and the Guarantors that (i) it has not solicited and will not solicit offers for, or offer or sell, such Securities the Offered Notes by any form of "general solicitation solicitation" or "general advertising advertising" (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it has solicited and will solicit offers for such Securities the Offered Notes only from, and has offered and will offer such Securities and sell the Offered Notes only toto (A) in the case of offers and sales inside the United States, persons that it reasonably believes to be (A1) QIBs in compliance with Rule 144A under the Securities Act or (2) not more than two Institutional Accredited Investors that, prior to their purchase of the Offered Notes, execute and deliver to the Initial Purchaser a letter in the case of offers inside form annexed as Annex III to the United States, QIBs Final Memorandum and (B) in the case of offers and sales outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include including dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon accordance with Regulation S under the Securities Act thatAct; provided, in the case of each caseof clauses (A) and (B) that, in purchasing such Securities Offered Notes, such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each The Initial Purchaser, severally and not jointly, Purchaser represents, warrants, warrants and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the SecuritiesOffered Notes, or possession or distribution of either the Preliminary Memorandum or the Final Memorandum or any other offering or publicity material relating to the SecuritiesOffered Notes, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser it will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Offered Notes or has in its possession or distributes either the Preliminary Memorandum or the Final Memorandum or any such other materialoffering or publicity material relating to the Offered Notes, in all cases at its own expense;
(iii) the Securities Offered Notes have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser it has offered the Securities Offered Notes and will offer and sell the Securities Offered Notes (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a)5(a) hereof; accordingly, neither such the Initial Purchaser, its Affiliates affiliates nor any persons acting on its or their behalf have engaged or will engage in any "directed selling efforts efforts" (within the meaning of Regulation S) with respect to the SecuritiesOffered Notes, and any such the Initial Purchaser, its Affiliates affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser it (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities Offered Notes to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 Act 2000 (the "FSMA") with respect of to anything done by it in relation to the Securities Offered Notes in, from or otherwise involving the United Kingdom, ; and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities Offered Notes in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser it agrees that, at or prior to confirmation of sales of the SecuritiesOffered Notes, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities Offered Notes from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities Notes covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) 5 have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each The Initial Purchaser, severally and not jointly, Purchaser agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each The Initial Purchaser, severally and not jointly, Purchaser represents, warrants, warrants and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Offering Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until one year after the later of the commencement of the offering and the Closing Date (or any Option Closing Date, if later), only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such the Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such the Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(viv) such Initial Purchaser it (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 Act 2000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(viv) such Initial Purchaser It agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: ; "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until one year after the later of the commencement of the offering and the final closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Documentum Inc)
Offering of Securities; Restrictions on Transfer. (a) Each A. The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally to and not jointly, agrees with the Company and the Guarantors that (i) it has not solicited and will not solicit offers for, any offer to buy or offer or sell, such to sell the Securities by means of any form of general solicitation or general advertising (as those terms are used within the meaning of Regulation D) in Regulation D under the Securities Act) United States or in any manner involving a public offering within the meaning of Section 4(2) of the Act or, with respect to Securities sold in reliance on Regulation S under the Act ("Regulation S"), by means of any directed selling efforts and (ii) it has solicited and will solicit offers for such to buy the Securities only from, and has offered and will offer such offer, sell or deliver the Securities only to, (A) persons that whom it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons qualified institutional buyers ("foreign purchasers," QIBs") (as defined in Rule 144A under the Act) or, if any such person is buying for one or more institutional accounts for which term shall include dealers such person is acting as fiduciary or other professional fiduciaries in the United States acting on agent, only when such person has represented to it that each such account is a discretionary basis for foreign beneficial owners (other than an estate QIB to whom notice has been given that such sale or trust)) delivery is being made in reliance upon Regulation S under the Securities Act thaton Rule 144A, and, in each case, in transactions under Rule 144A, (B) a limited number of persons whom it reasonably believes to be institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D), and who provide to it a letter in the form of Exhibit B hereto or (C) persons to whom, and under circumstances which, it reasonably believes offers and sales of Securities may be made without registration of the Securities or the Common Stock issuable upon conversion thereof under the Act in reliance upon Regulation S. The Initial Purchaser also represents and warrants and agrees that it has offered and will offer to sell the Securities only to, and has solicited and will solicit offers to buy the Securities only from, persons who in purchasing such Securities are will be deemed to have represented and agreed as provided under "Investor Representations and Restrictions on Resale" in the Final Memorandum under the caption "Transfer Restrictions"Exhibit D hereto.
(b) Each B. The Initial Purchaser, severally and not jointly, represents, warrants, Purchaser represents and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which a. it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold sold, and, prior to the date expiration of the period of six months after from the Closing Date, will not offer or sell any Securities to persons in the United Kingdom Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or as agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom Kingdom, within the meaning of the Public Offers of Securities Regulations 1995; 1995 (B) the "Regulations");
b. it has complied and will comply with all applicable provisions of the Financial Services Act 1986 and Markets Xxx 0000 (the "FSMA") Regulations with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, ; and
c. it has only issued or passed on and (C) will only communicate issue or cause pass on to be communicated any invitation or inducement to engage person in investment activity (within the meaning of section 21 of the FSMA) United Kingdom any document received by it in connection with the issue or sale of the Securities if that person is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Company;
(vi) whom such Initial Purchaser agrees that, at document may otherwise lawfully be issued or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.passed on.
Appears in 1 contract
Samples: Purchase Agreement (Amnex Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents represents, warrants, and warrants agrees that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer RestrictionsNotice to Investors".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except (A) in accordance with Rule 144A or Regulation S under the Securities Act Act, (B) pursuant to registration of the Securities under the Securities Act, or (C) pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser will not engage in hedging transactions with regard to the Securities prior to the expiration of the distribution compliance period pursuant to Regulation S, unless in compliance with the Securities Act;
(v) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 1 year after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a)) hereof; accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(vvi) such Initial Purchaser has (A) has not offered or sold andsold, prior to the date six months after the Closing Date, and will not offer or sell any Securities to persons in the United Kingdom except Kingdom, by means of any document, any Securities other than to persons whose ordinary activities involve them in acquiringbusiness is to buy and sell shares or debentures, holding, managing or disposing of investments (whether as a principal or agent) for the purposes of their businesses , or otherwise in circumstances which have do not resulted and will not result in constitute an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; 1995 (the "Regulations"), (B) has complied and will comply with all applicable provisions of the Financial Services Act 1986 of the United Kingdom and Markets Xxx 0000 (the "FSMA") Regulations with respect of anything tx xxxxxxng done by it them in relation to the Securities in, from from, or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate or cause issue and pass on to be communicated any invitation or inducement to engage persons in investment activity (within the meaning of section 21 of the FSMA) United Kingdom any document received by it in connection with the issue or sale of the Securities if that person is of a kind described in circumstances in which section 21(1Article 9(3) of the FSMA does not apply to the Company;Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1988; and
(vivii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") or any state securities laws and may not be offered and or sold within the United States or to, or for the account or benefit of, U.S. persons Persons (i) as part of their distribution at any time, time or (ii) otherwise until one year following the closing of this offering except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above shall have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
(c) The Company and each Initial Purchaser agree that upon issuance the Zero Coupon Convertible Senior Notes due 2020 will bear the legend set forth in Paragraph 4 of the "Notice to Investors - Investor Representations and Restrictions on Resale" section of the Memorandum.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, The Placement Agent represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, The Placement Agent agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to the Placement Agent a letter containing the representations and agreements set forth in Exhibit A to the Final Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, The Placement Agent represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser it understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser it will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaserthe Placement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser it has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") Act 1986 with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser it understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) it agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 1933, as amended (the "Securities ActSECURITIES ACT") ), and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S". Terms used in this Section 7(b8(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, and will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 or the Financial Services Act 1986; (B) has complied and will comply with comxxx xxxx all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") Act 1986 with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, ; and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 1986 (Investment Advertisexxxxx) (Exemptions) Order 1996 (as amended) or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to the Company that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and or (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees (on behalf of itself and any person acting on their behalf) with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws relevant laws, regulations and regulations directives in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser, in relation to each Member State of the European Economic Area, has represented and agreed that with effect from and including the date on which the Prospectus Directive was implemented in that Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Securities to the public in that Member State, except that it may, with effect from and including the Relevant Implementation Date, make an offer of such notes to the public in that Member State to:
(A) any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 3 of the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression “an offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State. The expression “Prospectus Directive” means Directive 2003/71/EC (as amended), and includes any relevant implementing measure in the Member State.
(vi) such Initial Purchaser has represented and agreed that it:
(A) has not offered only communicated or sold and, prior caused to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted be communicated and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the Financial Services and Markets Xxx 0000 (the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA does not apply to the Company;; and
(viB) has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the notes in, from or otherwise involving the United Kingdom; and
(vii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.S, unless otherwise indicated.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and or (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(vii) such Initial Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not made and will not make an offer of Securities to the public in that Relevant Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 3 of the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 3010/73/EU.
(iii) such Initial Purchaser (A) has not offered represented and agreed that it has only communicated or sold and, prior caused to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted be communicated and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the Company;United Kingdom; and
(viiv) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser acknowledges that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company that would permit a public offering of the Securities, or possession or distribution of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required; and
(ii) neither the offer nor sale of the Securities has been registered under the Securities Act and the Securities may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act.
Appears in 1 contract
Samples: Purchase Agreement (Brocade Communications Systems Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB")”) and an “accredited investor” as defined in Rule 501(a)(1) under the Securities Act. Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such sell the Securities in the United States only from, and will offer such Securities only to, to persons that it reasonably believes to be (A) QIBs that, in the case of offers inside the United States, QIBs and clause (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trustii)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(ba) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S..
Appears in 1 contract
Samples: Purchase Agreement (Ezcorp Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that that:
(i) it is purchasing the Securities pursuant to a private sale exemption from registration under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iiiii) it has solicited and will solicit offers for such Securities only from, and has offered or sold and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than "U.S. persons persons" ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon "offshore transactions" (as such terms are defined in Regulation S) in compliance with Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser has complied and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold ; and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Lear Corp /De/)
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or any of the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) neither the Securities nor the Guarantees have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date expiry of the period of six months after from the Closing Dateissue date of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 19951995 (as amended); (B) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; and (C) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") FSMA with respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;.
(vi) such Initial Purchaser Placement Agent understands that neither the Securities nor the Guarantees have been or will be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities and the Guarantees covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign non-U.S. purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"Notice to Investors" contained in the Final Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"” contained in the Offering Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; and (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and each respective Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants to the Company that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and or (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Relevant Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has complied and will comply with all applicable provisions implemented the relevant provision of the Financial Services and Markets Xxx 0000 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the "FSMA"Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of Xxxxxx Xxxxxxx & Co. LLC on behalf of the Initial Purchasers for any such offer; or
(C) with respect in any other circumstances falling within Article 3 of anything done by it the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe for the Securities, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 3010/73/EU.
(Cvi) such Initial Purchaser has represented and agreed that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, The Placement Agent represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, The Placement Agent agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions".”
(b) Each Initial Purchaser, severally and not jointly, The Placement Agent represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser the Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser the Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser the Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaserthe Placement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Member State, except that it may, with effect from and including such date, make an offer of Securities to the United Kingdom within public in that Member State:
(a) at any time to legal entities which are authorized or regulated to operate in the meaning financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(b) at any time to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(c) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Public Offers Prospectus Directive. For the purposes of the above, the expression an “offer of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of to the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Placement Agent has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the Company;United Kingdom; and
(viviii) such Initial Purchaser Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b8(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Placement Agreement (Mastec Inc)
Offering of Securities; Restrictions on Transfer. (a) Each of ------------------------------------------------ the Initial Purchaser, severally and not jointly, Purchasers represents and warrants (as to itself only) that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not solicited and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has solicited and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," ------------------ which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), -------- ------- in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"" contained in the Final Memorandum (or, if the Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the Securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S." Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"QIBs.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;; and
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;.
(ivc) such The Company agrees that the Initial Purchaser has offered Purchasers may provide copies of the Securities and will offer and sell Preliminary Memorandum, the Securities as part Time of their distribution at any time or as otherwise permitted in Section 7(a); accordinglySale Memorandum, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, Final Memorandum and any such Initial Purchaserother agreements or documents relating thereto, its Affiliates and any such persons have complied and will comply with including without limitation, the offering restrictions requirement Indenture, to Xtract Research LLC (“Xtract”), following completion of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andthe offering, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents represents, warrants and warrants agrees that such Initial Purchaser (i) it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointlyan “accredited investor” within the meaning of Rule 501 under the Securities Act, agrees with the Company and the Guarantors that (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (iiiii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) QIBs in the case of offers inside the United Statestransactions pursuant to Rule 144A and in connection with each such sale, QIBs and (B) in the case of offers outside the United States, it has taken or will take reasonable steps to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) ensure that such sale is being made in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) on Rule 144A. Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Disclosure Package or the Memorandum or any such other material, in all cases at its own expense;, except as provided in Section 6(e).
(iiib) Each Initial Purchaser acknowledges and agrees that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or toCompany and, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under purposes of the Securities Act or opinions to be delivered to the Initial Purchasers pursuant to another exemption from Sections 5(c), 5(d), 5(e) and 5(f), counsel for the registration requirements Company, counsel for the Guarantor and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the Securities Act;
(iv) such Initial Purchaser has offered the Securities representations and will offer and sell the Securities as part warranties of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning and compliance of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (Awith its agreements, contained in paragraph 7(a) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdomabove, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior hereby consents to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.such reliance.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Company understands that the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under Purchasers intend to offer the Securities Act (a "QIB")for resale on the terms set forth in the Time of Sale Memorandum. Each Initial Purchaser, severally and not jointly, represents, warrants and agrees with the Company and the Guarantors that that:
(i) it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”), an accredited investor within the meaning of Rule 501(a) under the Securities Act and an accredited investor within the meaning of NI 45-106 with such knowledge and experience in financial and business matters as are necessary in order to evaluate the merits and risk of an investment in the Notes;
(ii) it or any affiliate thereof (if such affiliate offers and sells Securities in accordance with this Agreement) is duly registered or licensed or exempt from any such requirement in those jurisdictions in which it is required to be so registered or licensed in order to offer the Securities for resale;
(iii) without the Representatives’ prior consent, it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such the Securities by means of any form of general solicitation or general advertising (as those terms are used in within the meaning of Rule 502(c) of Regulation D under the Securities ActAct (“Regulation D”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser it has not solicited offers for, or offered the Securities or sold, and will not solicit offers for, or offer and sell or sell, the Securities as part of their distribution at any time or as otherwise permitted initial offering except to persons whom it reasonably believes to be QIBs in Section 7(a); accordinglytransactions pursuant to Rule 144A under the Securities Act (“Rule 144A”) and in connection with each such sale, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged it has taken or will engage take reasonable steps to ensure that the purchaser of the Securities is aware that such sale is being made in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;reliance on Rule 144A; and
(v) such Initial Purchaser (A) it has not solicited offers for, or offered or sold andsold, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an solicit offers for, or offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to or sell, the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any timeinitial offering to persons resident in Canada unless it has provided a copy of the Preliminary Memorandum, the Final Memorandum and the Pricing Supplement to such persons and except to persons:
(A) which are not individuals;
(B) whom it reasonably believes are “accredited investors” as defined in Section 1.1 of National Instrument 45-106 Prospectus Exemptions (“NI 45-106”) or subsection 73.3(1) of the Securities Act (Ontario) (the “OSA”), as applicable, and (1) whom are either purchasing the Securities as principal for their own account, or are deemed to be purchasing the Securities as principal for their own account in accordance with Regulation S Canadian Securities Laws and not as agent for the benefit of another person; (2) if they are an “accredited investor” in reliance on paragraph (m) of the definition of “accredited investor” in section 1.1 of NI 45-106, such person was not created or Rule 144A if available) under used solely to purchase or hold the Securities Act. Terms used above have as an “accredited investor” as described under that paragraph (m); and (3) whom are not purchasing the meaning given Securities pursuant to them any of (i) subsections (e), (e.1), (j), (j.1), (k) or (l) of the definition of “accredited investor” in Section 1.1 of NI 45-106, subsections (d), (q) or (v) of the definition of “accredited investor” in Section 1.1 of NI 45-106, as an “individual” or, subsections (d), (i) or (j) of the definition of “accredited investor” in Section 73.3(1) of the OSA as a “person”; and
(C) which are “permitted clients” as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (“NI 31-103”) if any Initial Purchaser is relying on the international dealer exemption pursuant to NI 31-103.
(b) Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(d) and 5(j) hereof, counsel for the Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchasers, and compliance by Regulation S." Terms used the Initial Purchasers with their agreements, contained in this Section 7(bparagraph (a) have above, and each Initial Purchaser hereby consents to such reliance.
(c) Each Initial Purchaser will provide to the meanings given Company the Personal Information (as defined in the Final Memorandum) of any subsequent purchasers resident in Canada and provide any information related to them any Initial Purchaser that may be required by Regulation S.the Company, in each case, in order for the Company to meet its obligation to file with the applicable Canadian Securities Commissions within 10 days of the Closing Date report(s) of exempt distribution in accordance with Form 45-106F1 of NI 45-106 (with such modifications as permitted under ASC Rule 72-501 in respect of sales outside of Canada).
(d) The Company acknowledges and agrees that the Initial Purchasers may, in accordance with the Securities Act and if applicable Canadian Securities Laws, offer and sell Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided such affiliate is duly registered or licensed or exempt from any such requirement in those jurisdictions in which it is required to be so registered or licensed in order to offer the Securities for resale.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act, (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers“Foreign Purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, case in purchasing such Securities are deemed to have represented and agreed as provided in the Disclosure Package and the Final Memorandum under the caption "“Transfer Restrictions",” and (iii) it will otherwise act in accordance with the terms and conditions set forth in this Agreement and the Memorandum in connection with the placement of the Securities contemplated hereby.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, warrants and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Disclosure Package, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Disclosure Package, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied with and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in the United Kingdom within the meaning of the Public Offers that Member State, except that it may, which effect from and including such date, make an offer of Securities Regulations 1995; to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(B) at any time to any legal entity which has complied two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and will comply with all applicable provisions (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive. For purposes of the "FSMA") with respect above, the expression an “offer of anything done by it Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe to the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to the CompanyCompany and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered convered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as a part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Amgen Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"”. As used in this Section 7(a), the terms “United States” and “U.S. Person” have the meanings set forth in Regulation S under the Securities Act.
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will Placement Agent will, to the best of its knowledge, comply with all applicable laws relevant laws, regulations and regulations directives in each jurisdiction in which it acquirespurchases, offers, sells or delivers Securities or has in its possession or distributes either the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (hhh) as part of their distribution at any time and (iii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive, excluding Luxembourg (A) each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in that Relevant Member State prior to the United Kingdom within the meaning publication of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it a prospectus in relation to the Securities inwhich has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Securities to the public in that Relevant Member State at any time:
(a) to legal entities which are authorized or otherwise involving regulated to operate in the United Kingdomfinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (C3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(c) in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State;
(vi) such Placement Agent has represented and agreed that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the Financial Services and Markets Xxx 0000 (“FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA does not apply to the CompanyCompany or the Guarantors and it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Securities in, from or otherwise involving the United Kingdom;
(vivii) such Initial Purchaser Placement Agent has represented and agreed that the offer of the Securities in the Netherlands may be made only in accordance with the provisions of Chapter 5.1 of the Act on the financial supervision (Wet op het financieel toezicht);
(viii) such Placement Agent understands that the offer and sale of the Securities in France will only be made to qualified investors (investisseurs qualifiés), to a limited group of investors (cercle restreint d’investisseurs) and/or to providers of investments services relating to portfolio management for the account of third parties, as defined in and in accordance with articles L.411-1, L.411-2, D.411-1 and D.411-2 of the French Code monétaire et financier;
(ix) such Placement Agent understand that the offering of the Securities has not been cleared by CONSOB (the Italian Securities Exchange Commission) pursuant to Italian securities legislation and, accordingly, no Securities may be offered, sold or delivered, directly or indirectly, nor may copies of the Final Memorandum or of any other document relating to the Securities be distributed in the Republic of Italy, except (i) to qualified investors (operatori qualificati), as defined in Article 31, second paragraph, of CONSOB Regulation No. 11522 of July 1, 1998, as amended; or (ii) in circumstances which are exempted from the rules on solicitation of investments pursuant to Article 100 of Legislative Decree No. 58 of February 24, 1998, as amended (the “Italian Financial Services Act”), its implementing CONSOB regulations including Article 33, first paragraph, of CONSOB Regulation No. 11971 of May 14, 1999, as amended. Any offer, sale or delivery of the Securities or distribution of copies of the Final Memorandum or any other document relating to the Securities in the Republic of Italy under (i) or (ii) above must be (a) made by an investment firm, bank or financial intermediary permitted to conduct such activities in the Republic of Italy in accordance with the Italian Financial Services Act and Legislative Decree No. 385 of September 1, 1993 (the “Banking Act”), as amended and the implementing guidelines of the Bank of Italy; and (b) in compliance with Article 129 of the Banking Act and the implementing guidelines of the Bank of Italy pursuant to which the issue or the offer of securities in the Republic of Italy may need to be preceded and followed by an appropriate notice to be filed with the Bank of Italy depending, inter alia, on the aggregate value of the securities issued or offered in the Republic of Italy and their characteristics; and in accordance with any other applicable laws and regulations including any relevant limitations which may be imposed by CONSOB or the Bank of Italy. In any case, the Securities cannot be offered or sold to any individuals in Italy, neither in the primary or secondary market;
(x) such Placement Agent has represented and agreed that (a) it has not offered or sold and will not offer or sell in Hong Kong, by means of any document, any of the Securities other than (1) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong (the “SFO”) and any rules made thereunder; or (2) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that ordinance; and (b) it has not and will not issue any advertisement, invitation or document relating to the Securities, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made thereunder;
(xi) such Placement Agent has represented and agreed that it has not circulated or distributed this memorandum or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities, nor will it offer or sell the notes, or make the Securities the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (a) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”), (b) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275 of the SFA, or (c) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA. Where the Securities are subscribed or purchased under Section 275 by a relevant person which is: (a) a corporation (which is not an accredited investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares, debentures and units of shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust shall not be transferable for 6 months after that corporation or that trust has acquired the Securities under Section 275 except: (1) to an institutional investor under Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is given for the transfer; or (3) by operation of law;
(xii) such Placement Agent has represented and agreed that it will not offer or sell any Securities, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan; and
(xiii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.S, unless otherwise indicated.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company Issuer and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form General Solicitation, other than a permitted communication listed on Schedule II hereto, or those made with the prior written consent of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) Issuer and the Guarantors or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act Act, and (ii) it will solicit offers for such Securities only from, and will offer sell such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Time of Sale Memorandum and the Final Memorandum under the caption "“Transfer Restrictions".”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or Issuer and the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time and otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andPurchaser, prior in relation to each Member State of the date six months after the Closing Date, will not offer or sell any Securities to persons in European Economic Area and the United Kingdom except (each, a “Relevant State”), has not offered, sold or otherwise made available and will not offer, sell or otherwise make available the Securities to persons whose ordinary activities involve them any retail investor in acquiringthe European Economic Area (“EEA”) or the United Kingdom (the “UK”). For these purposes, holding, managing (a) a retail investor means a person who is one (or disposing more) of: (i) a retail client as defined in point (11) of investments Article 4(1) of Directive 2014/65/EU (as principal amended, “MiFID II”); or agent(ii) a customer within the meaning of Directive 2016/97/EU, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the Regulation (EU) 2017/1129 (the “Prospectus Regulation”) and in respect of the UK The Prospectus (Amendment etc.) (EU Exit) Regulations 2019; and (b) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe the notes. Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the notes or otherwise making them available to retail investors in the EEA or in the UK has been prepared and therefore offering or selling the notes or otherwise making them available to any retail investor in the EEA or in the UK may be unlawful under the PRIIPs Regulation. This offering memorandum has been prepared on the basis that any offer of notes in any Member State of the EEA or in the UK will be made pursuant to an exemption under the Prospectus Regulation from the requirement to publish a prospectus for offers of notes. This offering memorandum is not a prospectus for the purposes of their businesses the Prospectus Regulation. References to Regulations or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it Directives include, in relation to the Securities inUK, from those Regulations or otherwise involving Directives as they form part of UK domestic law by virtue of the United KingdomEuropean Union (Withdrawal) Act 2018 or have been implemented in UK domestic law, as appropriate.
(vi) such Initial Purchaser has represented and agreed (CA) that it has only communicated or caused to be communicated and will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAUnited Kingdom Financial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act is complied with or does not apply to the CompanyCompany and (B) it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the UK;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used and not otherwise defined in this Section 7(b) have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, agrees not to use any Additional Written Offering Communication other than those approved by the Company in advance in writing or those that, if this offering of Securities were registered under the Securities Act, would not result in the Company being required to file with the Commission under Rule 433(d) such Additional Written Offering Communication as a free writing prospectus prepared by or on behalf of such Initial Purchaser that otherwise would not be required to be so filed by the Company, but for the action of the Initial Purchaser.
(d) Each Initial Purchaser has not and, severally and not jointly, agrees that it will not enter into any contractual arrangement with any distributor (within the meaning of Regulation S) with respect to the distribution of Securities, provided, however, that nothing in this provision precludes the Initial Purchasers from entering into any such contractual arrangement (i) between and among themselves, (ii) with their respective affiliates or (iii) with the prior written consent of the Company. In addition to the foregoing, each Initial Purchaser acknowledges and agrees that the Issuer and the Guarantors and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 5 hereof, counsels for the Issuer, the Guarantors and the Initial Purchasers may rely upon the accuracy of the representations and warranties of the Initial Purchasers and their compliance with their agreements contained in this Section 7, and each Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (Seagate Technology Holdings PLC)
Offering of Securities; Restrictions on Transfer. (a) Each Initial PurchaserPlacement Agent, severally and not jointly, represents and warrants that such Initial Purchaser Placement Agent is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial PurchaserPlacement Agent, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial PurchaserPlacement Agent, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser Placement Agent understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser Placement Agent will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Placement Agent has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial PurchaserPlacement Agent, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial PurchaserPlacement Agent, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Placement Agent has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx Act 0000 (the "FSMA") with xxxh respect of to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such Initial Purchaser Placement Agent understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Samples: Placement Agreement (Primark Corp)
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, Purchasers represents and warrants (as to itself only) that such Initial Purchaser it is a qualified institutional buyer "Qualified Institutional Buyer" (as defined in Rule 144A promulgated under the Securities Act Act) (a "QIB"). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuer (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (x) persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A or (y) a limited number of other institutional investors reasonably believed by the Initial Purchasers to be Accredited Investors that, prior to their purchase of the Securities, deliver to the Initial Purchasers a letter containing the representations and agreements set forth in Annex A to the Final Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) ); in reliance upon Regulation S under the Securities Act provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"" contained in the Final Memorandum (or, if the Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser complied and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the Securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S." Terms used in this Section 7(b8(b) and not defined in this Agreement have the meanings given to them by in Regulation S.
(c) Each of the Initial Purchasers represents and warrants (as to itself only) that the source of funds being used by it to acquire the Securities does not include the assets of any "employee benefit plan" (within the meaning of Section 3 of ERISA) or any "plan" (within the meaning of Section 4975 of the Code).
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each The Initial Purchaser, severally and not jointly, Purchaser agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such the Convertible Preferred Securities by any form of general solicitation or general advertising (as those terms are used defined in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Convertible Preferred Securities only from, and will offer such and sell the Convertible Preferred Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs QIBs, and (B) in the case of offers or sales outside the United States, to persons other than U.S. persons ("foreign purchasersFOREIGN PURCHASERS," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such the Convertible Preferred Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions.".
(b) Each The Initial Purchaser, severally and not jointly, Purchaser represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such the Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors Trust that would permit a public offering of the Convertible Preferred Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Convertible Preferred Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such the Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Convertible Preferred Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Convertible Preferred Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such the Initial Purchaser has offered the Convertible Preferred Securities and will offer and sell the Convertible Preferred Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date (or Option Closing Date, if later), only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such the Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Convertible Preferred Securities, and any such the Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such the Initial Purchaser has (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Convertible Preferred Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") Act 1986 with respect of to anything done by it in relation to the Convertible Preferred Securities in, from or otherwise involving the United Kingdom, and (C) only issued or passed on and will only communicate issue or cause to be communicated pass on in the United Kingdom any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) document received by it in connection with the issue or sale of the Convertible Preferred Securities to a person who is of a kind described in circumstances in which section 21(1Article 11(3) of the FSMA does not apply Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to the Companywhom such document may otherwise lawfully be issued or passed on;
(vi) such the Initial Purchaser understands that the Convertible Preferred Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Convertible Preferred Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(vii) the Initial Purchaser agrees that, at or prior to confirmation of sales of the Convertible Preferred Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Convertible Preferred Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the final closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants The ------------------------------------------------ Purchasers acknowledge that such Initial Purchaser is they are purchasing the Securities pursuant to a qualified institutional buyer as defined in Rule 144A private sale exemption from registration under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
. Each Purchaser represents and warrants to and agrees with the Company that (ivi) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaserit, its Affiliates nor affiliates and any persons person acting on its or their behalf its affiliates behalf, have engaged not solicited and will not solicit any offer to buy or will engage in offer to sell the Securities by means of any directed selling efforts form of general solicitation or general advertising (within the meaning of Regulation SD) with respect to the Securities, and or in any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the manner involving a public offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of Section 4(2) of the Public Offers Act or, with respect to Securities to be sold in reliance on Regulation S, by means of any directed selling efforts and (ii) it has solicited and will solicit offers to buy the Securities Regulations 1995; only from, and has offered and will offer, sell or deliver the Securities only to, (A) persons who it reasonably believes to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to it that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A, (B) has complied persons who it reasonably believes to be Institutional Accredited Investors, and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 who provide to it a letter (the an "FSMAAccredited Investor Letter") with respect in the form of anything done by it in relation to the Securities in, from Exhibit A hereto or otherwise involving the United Kingdom, and (C) will only communicate or cause Foreign Purchasers to whom, and under circumstances which, it reasonably believes offers and sales of Securities may be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale made without registration of the Securities under the Act in circumstances reliance upon Regulation S thereunder and who provide to it a letter (a "Regulation S Letter") in which section 21(1) the form of Exhibit B hereto. Each Purchaser agrees, with respect to resales made in reliance on Rule 144A, other than through the National Association of Securities Dealers, Inc. PORTAL Market, of any Securities purchased from the Company hereunder, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Securities has been made in reliance upon the exemption from the registration requirements of the FSMA does not apply Act provided by Rule 144A. Each Purchaser agrees, with respect to resales made in reliance on Regulation S. to deliver either with the Company;
(vi) confirmation of such Initial Purchaser agrees that, at resale or otherwise prior to confirmation settlement of sales of the Securities, it will have sent such resale a notice substantially to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 1933, as amended (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution thereof at any timetime or (ii) otherwise until 40 days after the later of the date of commencement of the offering and the latest closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S."
Appears in 1 contract
Samples: Purchase Agreement (McLeod Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company Operating Partnership and the Guarantors Company that it (and any person acting on its behalf): (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs QIBs; and (Biii) in has taken or will take reasonable steps to ensure that each purchaser of the case of offers outside Securities is aware that the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) Securities are being offered and sold in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are representations and warranties deemed to have represented and agreed been made by such purchaser as provided in the Final Time of Sale Memorandum under the caption "Transfer Restrictions"“Important Notice to Readers.”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or as the Guarantors Operating Partnership that would permit a public offering of the SecuritiesSecurities or the Guarantees, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the SecuritiesSecurities or the Guarantees, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or the Guarantees or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities and the Guarantees have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has offered implemented the Prospectus Directive (each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not made and will not make an offer of the Securities to the public in that Relevant Member State, other than:
(A) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Managers on behalf of the Initial Purchasers for any such offer; or
(C) in any other circumstances falling within Article 3 of the Prospectus Directive, provided that no such offer of Securities shall require the Company or any Initial Purchaser to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, the expression an “offer of the Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and will by any means of sufficient information on the terms of the offer and sell the Securities to be offered so as part of their distribution at any time to enable an investor to decide to purchase or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any such Initial Purchaserrelevant implementing measure in that Member State, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation Sexpression “2010 PD Amending Directive” means Directive 2010/73/EU;
(v) such Initial Purchaser (A) has not offered represented and agreed that it has only communicated or sold and, prior caused to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted be communicated and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the Company;United Kingdom; and
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of understands that the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during and the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby Guarantees have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 (Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities or the "Securities Act") and may not be offered and sold within the United States or to, Guarantees in Japan or for the account or benefit of, U.S. persons as part of their distribution at any time, resident thereof except in accordance with Regulation S (or Rule 144A if available) under pursuant to any exemption from the registration requirements of the Securities Actand Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law.
(c) Each of the Company and the Operating Partnership agrees that the Initial Purchasers may provide copies of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture and the Registration Rights Agreement to Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Xtract, access to which shall be restricted by Xtract to QIBs. Terms used above have Each Initial Purchaser understands that the meaning given Operating Partnership and the Company and, for purposes of the opinions to them by Regulation S." Terms used in this be delivered to you pursuant to Section 7(b) have 5 hereof, counsel to the meanings given Operating Partnership and the Company and counsel to them by Regulation S.you will rely upon the accuracy and truth of the foregoing representations and warranties and you hereby consent to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (American Residential Properties, Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that that:
(i) it has not and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(ii) it has solicited and will solicit offers for such Securities only from, and has offered and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, (1) QIBs or (2) other institutional accredited investors, as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") that, prior to their purchase of the Securities, deliver to such Initial Purchaser a letter containing the representations and agreements set forth in Appendix A to the Memorandum and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include including dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer RestrictionsNotice to Investors".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 Act 2000 (the "FSMA") with respect of anything done by it in relation xxxxxxxx to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
; (vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of understands that the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been and will not be registered under the U.S. Securities Act and Exchange Law of 1933 (the "Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities Act") and may not be offered and sold within the United States or to, in Japan or for the account or benefit of, U.S. persons as part of their distribution at any time, resident thereof except in accordance with Regulation S (or Rule 144A if available) under pursuant to any exemption from the registration requirements of the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used and Exchange Law of Japan and otherwise in this Section 7(b) have the meanings given to them by Regulation S.compliance with applicable provisions of Japanese law; and
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each of the Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Guarantors Issuers (as to itself only) that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign non-U.S. purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); PROVIDED, HOWEVER, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided under the caption "Notice to Investors" contained in the Final Memorandum under (or, if the caption "Transfer Restrictions"Final Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either any Memorandum or any such other material, in all cases at its own expense;
; (iiiii) the Securities have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
; (iviii) such Initial Purchaser it has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (Civ) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees they agree that, at or prior to confirmation of sales of the Securities, it they will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it them during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. United States Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their the distribution of the Securities at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date of the offering, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by in Regulation S." Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each of the Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly, Purchasers agrees with the Company and the Subsidiary Guarantors that (i) it has not and will not solicit offers for, or offer or sell, such the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act; and (ii) it has and will solicit offers for such the Securities only from, and will offer such the Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, persons whom the Initial Purchasers reasonably believe to be QIBs or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to the Initial Purchasers that each such account is a QIB, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign “non-U.S. purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign non-U.S. beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act ); provided, however, that, in each casethe case of this clause (B), in purchasing such Securities such persons are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions"“Notice to Investors” contained in the Offering Memorandum.
(b) Each of the Initial Purchaser, severally Purchasers represents and not jointly, represents, warrants, and agrees warrants (as to itself only) with respect to offers and sales outside the United States that:
that (i) such Initial Purchaser understands that no action it has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser and will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities Notes or has in its possession or distributes either any Offering Memorandum or any such other material, in all cases at its own expense;
, (iiiii) the Securities Notes have not been registered under the Securities Act and may will not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another an exemption from the registration requirements of the Securities Act;
Act and (iviii) such Initial Purchaser it has offered the Securities Notes and will offer and sell the Securities Notes (A) as part of their its distribution at any time or as and (B) otherwise permitted until 40 days after the later of the commencement of the offering and the Closing Date, only in Section 7(a); accordance with Rule 903 of Regulation S and, accordingly, neither such Initial Purchaser, its Affiliates it nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the SecuritiesNotes, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." S. Terms used in this Section 7(b) 8 and not defined in this Agreement have the meanings given to them by in Regulation S.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form General Solicitation, other than a Permitted General Solicitation listed on Schedule II hereto, or those made with the prior written consent of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) Company, or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act, (ii) it will solicit offers for sell such Securities only from, and will offer such Securities only to, to persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions".”
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;; and
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under 144A.
(c) Each Initial Purchaser acknowledges and agrees that the Securities Act or Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchasers pursuant to another exemption from Sections 5(d), 5(e), 5(f), 5(k)(ii)(B), 5(k)(ii)(C) and 5(k)(ii)(D) of this Agreement, counsel for the registration requirements Company and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the Securities Act;representations and warranties of the Initial Purchasers, and compliance by the Initial Purchasers with their agreements, contained in paragraph (b) above, and each Initial Purchaser hereby consents to such reliance.
(ivd) such The Company agrees that the Initial Purchaser has offered Purchasers may provide copies of the Securities Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and will offer and sell the Securities as part Indenture to Xtract Research LLC (“Xtract”), following completion of their distribution at any time or as otherwise permitted in Section 7(a); accordinglythe offering, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 1 contract
Samples: Purchase Agreement (Interactive Intelligence Group, Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and (ii) it has not solicited offers for or offered or sold, and will not solicit offers for or sell such Securities only from, and will offer such as part of its initial offering except in transactions pursuant to Rule 144A under the Securities only to, Act to persons within the United States that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities Securities, are deemed to have acknowledged, represented and agreed as provided in the Time of Sale Memorandum and Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions".”
(b) Each Initial PurchaserThe Company, severally the Issuing Subsidiary and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors agree that would permit a public offering the Initial Purchasers may provide copies of the SecuritiesPreliminary Memorandum, or possession or distribution the Time of either Sale Memorandum, the Final Memorandum or and any other offering agreements or publicity material documents relating thereto, including without limitation, the Indenture, to the SecuritiesXtract Research LLC (“Xtract”), in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements following completion of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities as part of their distribution at any time or as otherwise permitted in Section 7(a); accordinglyoffering, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 1 contract
Samples: Purchase Agreement (Oclaro, Inc.)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, that in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "captions “Notice to Investors” and “Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;; and
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;.
(ivc) such The Company agrees that the Initial Purchaser has offered Purchasers may provide copies of the Securities and will offer and sell Preliminary Memorandum, the Securities as part Time of their distribution at any time or as otherwise permitted in Section 7(a); accordinglySale Memorandum, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, Final Memorandum and any such Initial Purchaserother agreements or documents relating thereto, its Affiliates and any such persons have complied and will comply with including without limitation, the offering restrictions requirement Transaction Documents, to Xtract Research LLC (“Xtract”), following completion of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold andthe offering, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result inclusion in an offer online research service sponsored by Xtract, access to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done which shall be restricted by it in relation Xtract to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.QIBs.
Appears in 1 contract
Samples: Purchase Agreement (Infinera Corp)
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents represents, warrants and warrants agrees that such Initial Purchaser (i) it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointlyan “accredited investor” within the meaning of Rule 501 under the Securities Act, agrees with the Company and the Guarantors that (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act, (iiiii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) QIBs in the case of offers inside the United Statestransactions pursuant to Rule 144A and in connection with each such sale, QIBs it has taken or will take reasonable steps to ensure that such sale is being made in reliance on Rule 144A and (Biv) in the case of it will solicit offers outside the United StatesStates only from, to and will offer such Securities only to, certain persons other than who are not U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries Persons in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) offshore transactions in reliance upon on Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) S. Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Disclosure Package or the Memorandum or any such other material, in all cases at its own expense;, except as provided in Section 6(e).
(iiib) Each Initial Purchaser acknowledges and agrees that the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or toCompany and, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under purposes of the Securities Act or opinions to be delivered to the Initial Purchasers pursuant to another exemption from Sections 5(c), 5(d), 5(e) and 5(f), counsel for the registration requirements Company, counsel for the Guarantor and counsel for the Initial Purchasers, respectively, may rely upon the accuracy of the Securities Act;
(iv) such Initial Purchaser has offered the Securities representations and will offer and sell the Securities as part warranties of their distribution at any time or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning and compliance of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (Awith its agreements, contained in paragraph 7(a) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdomabove, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(vi) such Initial Purchaser agrees that, at or prior hereby consents to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.such reliance.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors Authority that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"”.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors Authority that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a8(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in the United Kingdom within the meaning of the Public Offers that Member State, except that it may, with effect from and including such date, make an offer of Securities Regulations 1995; to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(B) at any time to any legal entity which has complied two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and will comply with all applicable provisions (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive. For the "FSMA") with respect purposes of anything done by it the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b8(b) have the meanings given to them by Regulation S.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each Initial Purchaser, severally and not jointly, represents and warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each Initial Purchaser, severally and not jointly, agrees with the Company and the Guarantors that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "“Transfer Restrictions"”. As used in this Section 7(a), the terms “United States” and “U.S. Person” have the meanings set forth in Regulation S under the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (A) each, a “Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Member State it has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted made and will not result in make an offer of Securities to the public in the United Kingdom within the meaning of the Public Offers that Member State, except that it may, with effect from and including such date, make an offer of Securities Regulations 1995; to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities;
(B) at any time to any legal entity which has complied two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and will comply with all applicable provisions (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication by us of a prospectus pursuant to Article 3 of the Financial Services and Markets Xxx 0000 (Prospectus Directive. For the "FSMA") with respect purposes of anything done by it the above, the expression an “offer of Securities to the public” in relation to any Securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities into be offered so as to enable an investor to decide to purchase or subscribe the Securities, from as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or otherwise involving the United Kingdom, caused to be communicated and (C) will only communicate or cause to be communicated any an invitation or inducement to engage in investment activity (within the meaning of section Section 21 of the FSMAFinancial Services and Markets Act 2000) received by it in connection with the issue or sale of the Securities in circumstances in which section Section 21(1) of the FSMA such Act does not apply to us and it has complied and will comply with all applicable provisions of such Act with respect to anything done by it in relation to any Securities in, from or otherwise involving the CompanyUnited Kingdom;
(vivii) such Initial Purchaser understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan, and represents that it has not offered or sold, and agrees not to offer or sell, directly or indirectly, any Securities in Japan or for the account of any resident thereof except pursuant to any exemption from the registration requirements of the Securities and Exchange Law of Japan and otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ” Terms used in this Section 7(b) have the meanings given to them by Regulation S.
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Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in QIB and an “accredited investor” within the meaning of Rule 144A under 501(a) of Regulation D of the Securities Act (a "QIB"“Regulation D”). Each The Initial Purchaser, severally Purchaser acknowledges and not jointly, agrees with the Company and the Guarantors as to itself only that (i) it will not solicit offers forthe Notes, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within Guarantees and the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs and (B) in the case of offers outside the United States, to persons other than U.S. persons ("foreign purchasers," which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Final Memorandum under the caption "Transfer Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents, warrants, and agrees with respect to offers and sales outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company or the Guarantors that would permit a public offering of the Securities, or possession or distribution of either Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities Underlying Shares have not been and will not be registered under the Securities Act in connection with the initial offering of the Notes and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (as defined in Regulation S) except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from from, or in a transaction not subject to the registration requirements of the Securities Act;
; (ivii) it is purchasing the Notes and the Guarantees pursuant to a private sale exemption from registration under such Initial Purchaser has offered Act and it is not acquiring the Notes and the Guarantees with the intention of offering or selling the Notes and the Guarantees in a transaction that would violate the Securities Act or the securities laws of any state in the United States or any other applicable jurisdiction in which it offers or sells Notes and Guarantees or distributes the Disclosure Package or the Offering Memorandum; (iii) it has not and will not solicit offers for, or offer and sell or sell, the Securities by any form of general solicitation or general advertising (as part of their distribution at any time those terms are used in Regulation D) or as otherwise permitted in Section 7(a); accordingly, neither such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (manner involving a public offering within the meaning of Regulation SSection 4(a)(2) with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) such Initial Purchaser (A) has not offered or sold and, prior to the date six months after the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000 (the "FSMA") with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom, and (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in Act; and (iv) it has and will solicit offers for the Securities only from, and will offer the Securities only to, persons whom the Initial Purchaser reasonably believes are QIBs or, if any such person is buying for one or more institutional accounts for which section 21(1) of the FSMA does not apply such person is acting as fiduciary or agent, only when such person has represented to the Company;
(vi) such Initial Purchaser agrees thatthat each such account is a QIB, at to whom notice has been given that such sale or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons as part of their distribution at any time, except delivery is being made in accordance with Regulation S (or reliance on Rule 144A if available) and, in each case, in transactions meeting the requirements under the Securities Act. Terms used above have the meaning given to them by Regulation S." Terms used in this Section 7(b) have the meanings given to them by Regulation S.Rule 144A.
Appears in 1 contract
Offering of Securities; Restrictions on Transfer. (a) Each The Initial Purchaser, severally and not jointly, Purchaser represents and warrants that such Initial Purchaser it is a qualified institutional buyer as defined in Rule 144A under the Securities Act (a "“QIB"”). Each The Initial Purchaser, severally and not jointly, Purchaser agrees with the Company and the Guarantors Issuer that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (ii) it will solicit offers for such Securities only from, and will offer such Securities only to, persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs or, in the case of the entity and the individuals identified on Schedule IV, an accredited investor (as such term is used in Regulation D under the Securities Act) or (B) in the case of offers outside the United States, to persons other than U.S. persons ("“foreign purchasers," ” which term shall include dealers or other professional fiduciaries in the United States acting on a discretionary basis for foreign beneficial owners (other than an estate or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Time of Sale Memorandum and the Final Memorandum under the caption "“Transfer Restrictions".”
(b) Each The Initial Purchaser, severally and not jointly, Purchaser represents, warrants, and agrees with respect to offers and sales outside the United States of Securities that:
(i) such the Initial Purchaser understands that no action has been or will be taken in any jurisdiction by the Company Issuer or the Guarantors any Guarantor that would permit a public offering of the Securities, or possession or distribution of either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any other offering or publicity material relating to the Securities, in any country or jurisdiction where action for that purpose is required;
(ii) such the Initial Purchaser will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or has in its possession or distributes either the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to another exemption from the registration requirements of the Securities Act;
(iv) such the Initial Purchaser has offered the Securities and will offer and sell the Securities (A) as part of their its distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, only in accordance with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither such the Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and any such the Initial Purchaser, its Affiliates and any such persons have complied and will comply with the offering restrictions requirement of Regulation S;
(v) The Initial Purchaser, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), has represented and agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not made and will not make an offer of Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including such Initial Purchaser date, make an offer of Securities to the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts;
(C) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons per Relevant Member State (other than qualified investors as defined below) subject to obtaining the prior consent of the representatives of the initial purchaser for any such offer; or
(D) in any other circumstances which do not offered or sold andrequire the publication of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of the above, prior the expression an “offer of Securities to the date six months after the Closing Date, will not offer or sell public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in that Member State, and the expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(vi) the Initial Purchaser has represented and agreed that the Time of Sale Memorandum and the Final Memorandum is only being distributed to, and is only directed at, persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Public Offers of Securities Regulations 1995; Prospectus Directive that are also (Bi) has complied and will comply with all applicable provisions investment professionals falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (the "FSMA"“Order”) with respect of anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom(ii) high net worth entities, and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (C) will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which section 21(1d) of the FSMA does not apply Order (each such person being referred to the Companyas a “relevant person”);
(vivii) such the Initial Purchaser agrees that, at or prior to confirmation of sales of the Securities, it will have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from it during the restricted period a confirmation or notice to substantially the following effect: "“The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "“Securities Act"”) and may not be offered and sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any timetime or (ii) otherwise until 40 days after the later of the commencement of the offering and the closing date, except in either case in accordance with Regulation S (or Rule 144A if available) under the Securities Act. Terms used above have the meaning given to them by Regulation S." ”
(viii) The Initial Purchaser agrees that it and each of its Affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Securities, except as contemplated by this Agreement, without the prior written consent of the Issuer and the Guarantors; and
(ix) The Initial Purchaser agrees that it and each of its Affiliates will not offer or sell the Securities in the United States by means of any form of general solicitation or general advertising within the meaning of Rule 502(c), including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. The Initial Purchaser agrees, with respect to resales made in reliance on Rule 144A of any of the Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A. Terms used in this Section 7(b) have the meanings given to them by Regulation S.
(c) The Issuer agrees that the Initial Purchaser may provide copies of the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum and any other agreements or documents relating thereto, including without limitation, the Indenture, the Escrow Agreement and the Registration Rights Agreement, to Xtract Research LLC (“Xtract”), following completion of the offering, for inclusion in an online research service sponsored by Xtract, access to which shall be restricted by Xtract to QIBs.
Appears in 1 contract
Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.)
