Private Offering Memorandum. The Fund shall promptly furnish the Custodian with copies of any updates, amendments or supplements to the foregoing documents. In addition, the Fund has delivered or will promptly deliver to the Custodian, copies of the Resolution(s) of its Manager and all amendments or supplements thereto, properly certified or authenticated, designating certain officers or employees of the Manager or Adviser who will have continuing authority to certify to the Custodian: (a) the names, titles, signatures and scope of authority of all persons authorized to give Instructions or any other notice, request, direction, instruction, certificate or instrument on behalf of the Fund, and (b) the names, titles and signatures of those persons authorized to countersign or confirm Special Instructions on behalf of the Fund (in both cases collectively, the "Authorized Persons" and individually, an "Authorized Person"). Such Resolutions and certificates may be accepted and relied upon by the Custodian as conclusive evidence of the facts set forth therein and shall be considered to be in full force and effect until delivery to the Custodian of a similar Resolution or certificate to the contrary. Upon delivery of a certificate which deletes or does not include the name(s) of a person previously authorized to give Instructions or to countersign or confirm Special Instructions, such persons shall no longer be considered an Authorized Person authorized to give Instructions or to countersign or confirm Special Instructions. Unless the certificate specifically requires that the approval of anyone else will first have been obtained, the Custodian will be under no obligation to inquire into the right of the person giving such Instructions or Special Instructions to do so. Notwithstanding any of the foregoing, no Instructions or Special Instructions received by the Custodian from the Manager, the Adviser or the Fund will be deemed to authorize or permit any director, trustee, officer, employee, or agent of the Manager, the Adviser or the Fund to withdraw any of the Assets of the Fund upon the mere receipt of such authorization, Special Instructions or Instructions from such director, trustee, officer, employee or agent.
Private Offering Memorandum. 13 8.5 Recipient of Pubco Stock..........................................14 8.6 Indemnification...................................................14 SECTION 9 CONDITIONS PRECEDENT TO CLOSING.....................................15 9.1 Conditions Precedent to Pubco's Obligations.......................15 9.2 Conditions Precedent to SmartGate's and the SmartGate Shareholder Obligations...........................................16 Page ---- SECTION 10 ADDITIONAL COVENANTS OF THE PARTIES................................18
Private Offering Memorandum. Pubco shall proceed in good faith toward preparation of a private offering memorandum (the "Private Offering Memorandum") to be used in connection with the Private Placement. Pubco shall have complete and exclusive responsibility to prepare the Private Offering Memorandum and related documents, which shall include such information concerning the offering, business, financial condition, results of operations and other matters concerning Pubco and this Agreement as may reasonably be determined by Pubco. Pubco shall be solely and exclusively responsible for the form and substance of the Private Offering Memorandum, the offer and sale of shares of Pubco as contemplated in the Private Offering Memorandum and for compliance with all applicable securities laws relating to the Private Offering Memorandum or the offer or sale of Pubco shares. Pubco shall cause the Private Offering Memorandum to be accurate and complete in all respects and to contain no misstatements. Pubco shall conduct the Private Placement in compliance with all applicable securities laws. While Pubco shall have complete and exclusive responsibility for the preparation of the Private Offering Memorandum, any information in the Private Offering Memorandum concerning SmartGate, including without limitation, the business, risks factors involving SmartGate and the offering, its management, the financial condition and results of operations of SmartGate, which was furnished by SmartGate expressly for use in the Private Offering Memorandum shall, to the extent used in the Private Offering Memorandum in a complete fashion, be the sole responsibility of SmartGate. Pubco's costs, expenses, and legal fees incurred in connection with the preparation of the Agreement and the Private Offering Memorandum shall not be the obligation of SmartGate but shall be paid by Pubco before closing without reducing the agreed upon Minimum Cash At Closing as provided for in Section 5.8.
Private Offering Memorandum. The Borrower shall operate its business in accordance with, and comply with the terms of, the Private Offering Memorandum and the Borrower’s organizational documents in all material respects, except for changes to any of the foregoing which are approved by the Required Lenders or in accordance with Section 7.2.11 [Changes in Organizational Documents].
Private Offering Memorandum. Each Shareholder shall have reviewed --------------------------- the Private Offering Memorandum (the "Memorandum") of PHC and returned to PHC within forty-eight (48) hours of the receipt by the Shareholder of the Memorandum an acknowledgment (substantially in the form attached hereto as Exhibit I) of such Shareholder's (i) review of the Memorandum and (ii) intention --------- to proceed with the transactions contemplated by this Agreement.
Private Offering Memorandum. Each of the Shareholders shall have --------------------------- received the Memorandum at least forty-eight (48) hours prior to Closing and shall have elected to proceed with the transactions contemplated by this Agreement within forty-eight (48) hours after receipt of the Memorandum.
Private Offering Memorandum. 33 Section 9.3 Company Shareholders' Meeting............ 33 Section 9.4 Fees and Expenses........................ 33 Section 9.5 Additional Agreements.................... 35 Section 9.6 Publicity................................ 35 Section 9.7
Private Offering Memorandum. (a) Parent shall prepare the Private Offering Memorandum as soon as is reasonably practicable. The Company shall furnish Parent all information concerning the Company and the holders of Company Common Stock required for use in the Private Offering Memorandum and shall take such other action as Parent may reasonably request in connection with any such actions.
(b) The Private Offering Memorandum shall be sent by the Company to its shareholders and used in connection with the Company's approval of the transaction in accordance with Section 9.3 hereof.
(c) The information provided and to be provided by Parent and the Company for use in the Private Offering Memorandum, shall be true and correct in all material respects without omission of any material fact which would be required to make such information not false or misleading.
(d) The Company and Parent shall each advise the other promptly if prior to the Effective Date it has or obtains knowledge of any facts that would make it necessary to supplement the Private Offering Memorandum in order to render the statements therein not misleading or to comply with applicable law. In such case, the Company and Parent shall cooperate in preparing and disseminating to Company shareholders any necessary supplement to the Private Offering Memorandum.
Private Offering Memorandum. (a) Parent shall prepare a Private Offering Memorandum with respect to the Parent Shares ("Private Offering Memorandum"). Such Private Offering Memorandum shall contain a joint proxy statement of Parent and Company.
(b) The information supplied by Company for inclusion in the Private Offering Memorandum shall not, at the time the Private Offering Memorandum is first mailed to holders of Company Shares and holders of Parent Common Stock, at the time of the shareholder meetings and at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. If at any time prior to the Effective Time any event or circumstances relating to Company Shares, or its officers or directors, should be discovered by Company which should be set forth in a supplement, Company shall promptly inform Parent.
(c) The information supplied by Parent for inclusion in the Private Offering Memorandum shall not, at the time the Private Offering Memorandum is first mailed to holders of Company Shares and holders of Parent Shares, at the time of the shareholder meetings and at the Effective Time contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. If at any time prior to the Effective Time any event or circumstance relating to Parent or its officers or directors, should be discovered by Parent which should be set forth in a supplement to the Private Offering Memorandum, Parent shall promptly inform Company and shall promptly prepare such supplement.
(d) Company shall furnish all information to Parent with respect to Company and the Company Subsidiaries as Parent may reasonably request for inclusion in the Private Offering Memorandum, and shall otherwise cooperate with Parent in the preparation and filing of such document.
Private Offering Memorandum. (a) In compliance with applicable Laws, Parent shall prepare and deliver to the Company for mailing to the shareholders of the Company as part of the Proxy Materials a private offering memorandum relating to the private offering of the shares of Parent Common to be issued in the Merger (the "POM"). 23 (b) The Company covenants that no information supplied by the Company to Parent for inclusion in the POM, at the date of the POM, will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
