Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. (b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S"). (c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that: (i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act. (ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. (iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S. (iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S." (v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S. (d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on. (e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
Appears in 2 contracts
Samples: Purchase Agreement (Nebraska Book Co), Purchase Agreement (NBC Acquisition Corp)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the Company, $110,000,000 250,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, represents and warrants to, to and agrees with, Merger Corp. with the Company and the Company Guarantors that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation REGULATION D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional BuyersQUALIFIED INSTITUTIONAL BUYERS"), as defined in Rule 144A under the Securities Act ("Rule RULE 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
Appears in 2 contracts
Samples: Purchase Agreement (Marketing Services Inc), Purchase Agreement (American Media Operations Inc)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.75% of the principal amount thereofthereof plus accrued interest, if any, from December 8, 2015 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer (“QIB”) within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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, however, that any such affiliate shall be subject to the same obligations as its affiliated Initial Purchaser hereunder, and that such Initial Purchaser shall be liable for any breach of these obligations by such affiliate.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Group 1 Automotive Inc)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.35% of the principal amount thereofof the Securities, plus accrued interest, if any, from October 25, 2019 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or any other person.
Appears in 2 contracts
Samples: Dollar Purchase Agreement (Netflix Inc), Dollar Purchase Agreement
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.625% of the principal amount thereofthereof plus accrued interest, if any, from September 13, 2016 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that Issuers that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act;
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) initial offering except within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").144A; and
(civ) In connection with the offer and sale of Securities in reliance on Regulation Sit has not solicited offers for, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered under the Securities Act and may not be or offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the Securitiessold, and will not solicit offers for, or offer and sell or sell, the Securities, (A) Securities as part of its distribution at any time and (B) otherwise until 40 days after the later initial offering except outside of the commencement of the offering of the Securities and the Closing Date, only United States in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Actrestrictions set forth in Annex D hereto.
(iiib) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (a) above (including Annex D hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(d) The Antero Entities acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Antero Entities with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Antero Entities or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Antero Entities shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement (Antero Midstream Partners LP), Purchase Agreement
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company Issuer agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the CompanyIssuer, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.00% [***] of the principal amount thereof. Interest on the Securities will accrue during each Series 2009-2 Interest Period at the rate of 1.75% per annum above One-Month LIBOR, as determined in accordance with the Indenture. The Company Issuer shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. [***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Issuer that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. the Issuer and the Company VMS that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act, (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only to (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"), ”) as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) in the case of offers outside the United States States, to persons other than U.S. persons Persons (as defined in reliance on Regulation S under in the Securities Act ("Regulation S").
(cAct) In connection in accordance with the offer and sale Rule 903 of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) it has not offered or sold and and, prior to the date six months after the Closing Date date of issuance of the Securities will not offer or sell 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; 1995 or the Financial Services and Markets Xxx 0000 (iithe “FSMA”), (v) it has only communicated or caused to be communicated and 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 any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Issuer and (vi) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 FSMA with respect to anything done by it in relation to the 16 16 such Securities in, from or otherwise involving the United Kingdom; . Each Initial Purchaser, severally and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company Issuer pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum Time of Sale Information (and any amendment or supplement thereto that the Company Issuer shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (ep), counsel for the Company Issuer and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(c) The Issuer acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (PHH Corp), Purchase Agreement (PHH Corp)
Purchase and Resale of the Securities. (a) On Subject to the Transactions occurring prior to or concurrently with the closing of the offering of the Securities, the Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a purchase price equal to 97.0097.50% of the principal amount thereofthereof plus accrued interest, if any, from March 4, 2004 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act, ;
(ii) it neither it, nor any of its affiliates referenced in Section 1(d) below, has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A"), 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 ) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 2 contracts
Samples: Purchase Agreement (Nebraska Book Co), Purchase Agreement (NBC Acquisition Corp)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a purchase price equal to 97.0098.25% of the principal amount thereofthereof plus accrued interest, if any, from March 10, 2004 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing either (x) a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a "QIB") and an accredited investor within the meaning of Rule 501(a) under the Securities Act or (y) not a U.S. person within the meaning of Rule 902(k) of Regulation S under the Securities Act ("Regulation S");
(ii) neither it nor and any of its affiliates referred to in Section 1(d) below has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) neither it nor and any of its affiliates referred to in Section 1(d) below has solicited and offers for, or offered or sold, or will solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A"), 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 ) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 2 contracts
Samples: Purchase Agreement (Trinity Industries Inc), Purchase Agreement (Trinity Marine Products, Inc.)
Purchase and Resale of the Securities. (a) On a. The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.50% of the principal amount thereofthereof plus accrued interest, if any, from August 1, 2011 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(cb) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may 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.
(d) The Antero Entities acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Antero Entities with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Antero Entities or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Antero Entities shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement (Antero Resources LLC), Purchase Agreement (Antero Resources Finance Corp)
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers on the Closing Date the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofof Securities purchased by each Initial Purchaser in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule 1 hereto bear to the aggregate principal amount of Securities set forth opposite the names of all such Initial Purchasers. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities ActAct (a “QIB”) and an accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex B hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e)Section 6, counsel for the Company Issuers and counsel for the Initial Purchaser, respectively, Purchasers may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 21(b) (including Annex B hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Partnership Parties acknowledge and agree that (i) each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Partnership Parties with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or agent of, the Partnership Parties or any other person and (ii) the several Initial Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Partnership Parties, and the several Initial Purchasers have no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship. Additionally, neither the Representative nor any other Initial Purchaser is advising the Partnership Parties or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Partnership Parties shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Partnership Parties with respect thereto. Any review by the Representative or any Initial Purchaser of the Partnership Parties and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Partnership Parties or any other person and does not constitute a recommendation, investment advice, or solicitation of any action by the Representative or any Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Global Partners Lp), Purchase Agreement (Global Partners Lp)
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.875% of the principal amount thereofthereof plus accrued interest, if any, from February 25, 2019 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that Issuers that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act;
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) initial offering except within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").144A; and
(civ) In connection with the offer and sale of Securities in reliance on Regulation Sit has not solicited offers for, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered under the Securities Act and may not be or offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the Securitiessold, and will not solicit offers for, or offer and sell or sell, the Securities, (A) Securities as part of its distribution at any time and (B) otherwise until 40 days after the later initial offering except outside of the commencement of the offering of the Securities and the Closing Date, only United States in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Actrestrictions set forth in Annex D hereto.
(iiib) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (a) above (including Annex D hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(d) The Antero Entities acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Antero Entities with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Antero Entities or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Antero Entities shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement (Antero Midstream GP LP), Purchase Agreement
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00103.250% of the principal amount thereofthereof plus accrued interest from May 30, 2019 to the Closing Date (the “Purchase Price”). The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuer understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only the initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A 144A;
(B) to persons inside the United States that are accredited investors (as defined in Rule 501(a)(1),(2), (3), (7) and in each case, in transactions (8) under the Securities Act); or
(C) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuer and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuer and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuer acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuer and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer or the Guarantors or any other person in connection therewith. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer or the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuer, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Builders FirstSource, Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.50% of the principal amount thereofthereof plus accrued interest, if any, from June 7, 2018 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (e6(i), counsel for the Company and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 2 contracts
Samples: Purchase Agreement (Callon Petroleum Co), Purchase Agreement
Purchase and Resale of the Securities. (a) On The Partnership agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Partnership the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.75% of the principal amount thereofthereof plus accrued interest, if any, from February 26, 2024 to the Closing Date (as defined below). The Company shall Partnership will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Partnership understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Partnership and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e)6(g) hereof, counsel for the Company Partnership and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Partnership acknowledges and agrees that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 10:00 A.M., New York City time, on February 26, 2024, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Partnership may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(f) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Partnership to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Partnership. An electronic copy of the Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(g) The Partnership acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Partnership with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Partnership or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Partnership or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Partnership shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Partnership with respect thereto. Any review by the Representative or any Initial Purchaser of the Partnership and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Partnership or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.35% of the principal amount thereofof the Securities plus accrued interest, if any, from April 29, 2019 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) of Regulation D under the Securities Act, Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined within the meaning of Rule 144A under the Securities Act in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or any other person.
(f) Each Initial Purchaser agrees and confirms that it is not entitled to the benefit of the representation and warranty contained in Section 3(bb) hereof, insofar as it would result in a breach and/or violation of, or conflict with, Council Regulation (EC) No. 2271/96.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.125% of the principal amount thereofthereof plus accrued interest from August 15, 2021 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer (“QIB”) within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A"), 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 and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of such Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e)6(j) hereof, counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may offer and sell the Securities to or through any affiliate of an Initial Purchaser and that any such affiliate may offer and sell the Securities purchased by it to or through any Initial Purchaser; provided, however, that any such affiliate shall be subject to the same obligations as its affiliated Initial Purchaser hereunder, and that such Initial Purchaser shall be liable for any breach of these obligations by such affiliate.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of the Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Obligors hereby agree, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell the Securities to the several Initial Purchaser Purchasers as provided herein, and each Initial Purchaser, on the Initial Purchaser agrees basis of the representations, warranties and agreements set forth herein and subject to the terms and conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, $110,000,000 Obligors the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.75% of the principal amount thereofthereof (the “Purchase Price”) plus accrued interest, if any, from October 16, 2013 to the Closing Date, payable on the Closing Date. The Company shall Obligors will not be obligated to deliver any of the Securities to be delivered hereunder except upon payment for all of the Securities to be purchased as provided herein.
(b) The Obligors understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Time of Sale Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(iA) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) of Regulation D under the Securities Act, ;
(iiB) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the such Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act;
(iiiC) it has solicited not sold, and will solicit offers for not sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(Ai) within the United States States, to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in within the meaning of Rule 144A under the Securities Act ("each, a “QIB”) in transactions pursuant to and meeting the requirements of Rule 144A"), 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 and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and 144A; and
(ii) in each case, in transactions in accordance with Rule 144A and (B) the case of offers outside the United States 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 on upon Regulation S under the Securities Act ("Regulation S").Act; that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Time of Sale Memorandum under the caption “Notice to Investors”;
(cD) In connection with respect to offers and sales of the offer and sale of Securities in reliance on Regulation Soutside the United States, the each Initial Purchaser represents, warrants and agrees that:
that (i) The Securities have it has not been registered under the Securities Act and may not be offered or sold within and will not offer or sell the Securities in the United States or to, or for the benefit or account or benefit of, a U.S. persons except pursuant to an exemption fromperson (in each case, or as defined in transactions not subject to, the registration requirements of the Securities Act.
Regulation S) (ii) The Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (Aa) as part of its their distribution at any time and (Bb) otherwise until 40 days after the later of the commencement of the offering of the Securities pursuant hereto and the Closing Date, only other than in accordance 15 15 with Regulation S or Rule 144A or any other available another exemption from the registration under requirements of the Securities Act.
; (iiiii) None of the Initial Purchaser or neither it nor any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement requirements of Regulation S.
S in connection with the offering of the Securities outside the United States; and (iviii) At at or prior to the confirmation of any sale of the Securities by it to any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase Securities from it during the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration 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, as amended (the "“Securities Act"”), and may not be offered or 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 time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in either case in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act or another exemption from the registration requirements of the Securities Act; and in connection with any subsequent sale by you of the Securities covered hereby in reliance on Regulation S under the Securities Act during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings given assigned to them by in Regulation S."S under the Securities Act.
(vE) it has not and will not enter into any contractual arrangement with any distributor with respect to offers and sales of the distribution Securities outside the United States, (i) it understands that no action has been or will be taken in any jurisdiction by the Obligors that would permit a public offering of the Securities, except with its affiliates or with the prior written consent possession or distribution of the Company. Terms used in this Section 2(c) have Preliminary Offering Memorandum, the meanings given to them by Regulation S.
(d) The Initial Purchaser representsTime of Sale Memorandum, warrants and agrees that (i) it has not offered the Offering Memorandum or sold and prior any other offering or publicity material relating to the date six months after the Closing Date will not offer or sell Securities, in 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) jurisdiction where action for the purposes of their businesses or otherwise in circumstances which have not resulted that purpose is required 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; (ii) it has complied and will comply with all applicable provisions laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or distributes the Preliminary Offering Memorandum, the Time of Sale Memorandum, the Offering Memorandum or such other offering or publicity material, in all cases at its own expense, and without limiting the generality of the Financial Services Act 0000 xxx foregoing, it has complied and will so comply with each of the Public Offers restrictions and laws applicable to each jurisdiction mentioned under the caption “Plan of Distribution” in the Preliminary Offering Memorandum, the Time of Sale Memorandum or the Offering Memorandum;
(F) offers and sales of the Securities Regulations 1995 with respect have only been made, and will only be made, by the Initial Purchasers or affiliates thereof qualified to anything done do so in the jurisdictions in which such offers and sales are made; and
(G) it has not used, authorized use of, referred to, distributed or participated in the planning for use of, and will not use, authorize use of, refer to, distribute 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 Preliminary Offering Memorandum, the Time of Sale Memorandum and the Offering Memorandum; (ii) any written communication that contains either (a) no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) or (b) “issuer information” that was included (including through incorporation by it reference) in relation to the 16 16 Securities in, from or otherwise involving Time of Sale Memorandum and the United KingdomOffering Memorandum; and (iii) it has only issued any written communication relating to or passed on and will only issue that contains the preliminary or pass on in the United Kingdom any document received by it in connection with the issue final terms of the Securities to a person who is a kind described or their offering or other information that was included (including through incorporation by reference) in Article 11(3the Time of Sale Memorandum or the Offering Memorandum; (iv) of any Additional Written Communication (as defined in Section 4(b)); or (v) any written communication prepared by such Initial Purchaser and approved by the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed onPartnership in advance in writing.
(ec) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Obligors and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (ethrough 5(i), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 22(b) above, and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.001.50% of the principal amount thereofthereof plus accrued interest, if any, from March 30, 2017 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons States, in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(h), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in paragraph (b) of this Section 21 (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated by this Agreement (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, none of the Representatives or any other Initial Purchaser are advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated by this Agreement, and none of the Representatives or any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representatives or any Initial Purchaser of the Company, the Guarantors and the transactions contemplated by this Agreement or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Gartner Inc)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company GST agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from GST, the Company, $110,000,000 principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097% of the principal amount thereof. The Company GST shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. GST and the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. GST and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (ii) it has not solicited offers for, or offered or sold, and will not solicit 14 15 offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), ) as defined in Rule 144A under the Securities Act ("Rule 144A")Act, 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 Qualified Institutional Buyer 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 in accordance with Rule 144A 144A. Each Initial Purchaser, severally and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation Snot jointly, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company GST pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company GST shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d), (e) and (ef), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(c) GST and the Company acknowledge and agree that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.75% of the principal amount thereofthereof plus accrued interest, if any, from July 31, 2015 to the Closing Date (the “Purchase Price”). The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuer understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not, directly or indirectly, solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only the initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A 144A;
(B) to persons inside the United States that are accredited investors (as defined in Rule 501(a)(1),(2), (3), (7) and in each case, in transactions (8) under the Securities Act); or
(C) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuer and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuer and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuer acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuer and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuer or the Guarantors or any other person in connection therewith. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer or the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuer, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On Escrow Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained hereinof Escrow Issuer, RRI and Mirant set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from Escrow Issuer the Company, $110,000,000 respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00(i) 96.873% of the principal amount thereofthereof plus accrued interest, if any, from October 4, 2010 to the Closing Date in the case of the 2018 Securities (the “2018 Securities Purchase Price”) and (ii) 95.926% of the principal amount thereof plus accrued interest, if any, from October 4, 2010 to the Closing Date in the case of the 2020 Securities (the “2020 Securities Purchase Price”and, together with the 2018 Securities Purchase Price, the “Purchase Prices”). The Company shall Escrow Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Each of Escrow Issuer, RRI and Mirant understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act, ;
(ii) neither it nor any person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) neither it nor any person acting on its behalf has solicited and offers for, or offered or sold, or will solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company andeach of Escrow Issuer, RRI and Mirant, and for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), counsel for the Company Escrow Issuer and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) Subject to applicable securities laws, each of Escrow Issuer, RRI and Mirant acknowledges and agrees that the Initial Purchasers may 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.
(e) Each of Escrow Issuer, RRI and Mirant acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to Escrow Issuer, RRI and Mirant with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, Escrow Issuer, RRI, Mirant or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising Escrow Issuer, RRI, Mirant or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Each of Escrow Issuer, RRI and Mirant shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to Escrow Issuer, RRI or Mirant with respect thereto. Any review by the Representative or any Initial Purchaser of Escrow Issuer, RRI or Mirant, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of Escrow Issuer, RRI, Mirant or any other person. Each of Escrow Issuer, RRI and Xxxxxx agrees that it will not claim that the Initial Purchasers, or any of them, has rendered services of any nature, or owes a fiduciary or similar duty to Escrow Issuer, RRI or Mirant, in connection with the purchase and sale of the Securities pursuant to this Agreement or the process leading thereto.
Appears in 1 contract
Samples: Purchase Agreement (Rri Energy Inc)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.35% of the principal amount thereofof the Securities, plus accrued interest, if any, from April 29, 2019 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the Company, $110,000,000 625,000,000 principal amount of Securities at a purchase price equal to 97.0097.25% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, represents and warrants to, and agrees with, Merger Corp. and with the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.;
(ii) The Initial Purchaser it has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.;
(iii) None none of the Initial Purchaser or Purchaser, any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts (as defined in Regulation S) with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement restriction requirements of Regulation S.S;
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase purchases Securities from it during the restricted period (as defined in Regulation S) 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."; and
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act Xxx 0000 xxx and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(311 (3) of the Financial Services Act Xxx 0000 (Xxvestment Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such the Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchaser may sell Securities to any affiliate of the Initial Purchaser and that any such affiliate may sell Securities purchased by it to the Initial Purchaser.
(g) The Initial Purchaser agrees that it shall notify the Company of its completion of the resale of the Securities.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00100% of the principal amount thereofthereof plus accrued interest, if any, from February 12, 2007 to the Closing Date. The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. As compensation, the Company will pay to the Representative on behalf of the Initial Purchasers an underwriting commission of 0.45% (the “Underwriting Commission”) of the aggregate principal amount of the Securities purchased by the Initial Purchasers on the Closing Date as commissions for the sale of the Securities under this Agreement. Such payment will be made on the Closing Date.
(b) The Company and the Issuer each understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities ActAct (a “QIB”), an accredited investor within the meaning of Rule 501(a) under the Securities Act and a Qualified Purchaser (as defined below);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be both QIBs and qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.purchasers
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sa De Cv)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation herein, each of the MergerCo-Issuers, Merger Corp. agrees to cause the Company tojointly and severally, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the CompanyCo-Issuers, U.S. $110,000,000 245,000,000 principal amount of Securities Series 2007-3 Fixed Rate Term Notes at a purchase price equal to 97.00of 99.999707% of the aggregate principal amount thereof. The Company Co-Issuers shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. The Securities will accrue interest at an annual rate of 7.0588%. In connection with the above purchase and sale, the Co-Issuers shall pay, on the Closing Date, to the Initial Purchaser $5,019,121, in immediately available funds.
(b) The Initial Purchaser has advised Merger Corp. the Co-Issuers that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandumherein. The Initial Purchaser represents, represents and warrants to, and agrees with, Merger Corp. the Co-Issuers, on the basis of the representations, warranties and agreement of the Co-Issuers, IHOP, the Parent Companies and the Company IHOP Securitization Entities that (i) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (ii) neither it nor any of its affiliates, nor any person acting on the Initial Purchaser’s behalf, has not solicited offers for, or offered or sold, and neither it, nor any of its affiliates, nor any person acting on the Initial Purchaser’s behalf, will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act Act, and (iii) it has solicited and will solicit offers (the “Exempt Resales”) for the Securities only from, and has have offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be be: (A) (i) qualified institutional buyers ("“Qualified Institutional Buyers"), ”) as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and and, in each case, case in transactions in accordance with Rule 144A and (ii) qualified purchasers (“Qualified Purchasers”) within the meaning of Section 2(a)(51) of the 1940 Act or (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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, neither “U.S. persons except pursuant to an exemption from, or Persons” (as such term is defined in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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 ) nor U.S. Securities Act of 1933, as amended Residents (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers 0000 Xxx) who acquire the Securities outside the U.S. in a transaction meeting the requirements of Securities Regulations 1995; Regulation S or (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it Qualified Purchasers. Those persons specified in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; clauses (A) and (iiiB) it has only issued or passed on and will only issue or pass on in above are referred to herein as the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale)“Eligible Purchasers”. In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company Co-Issuers and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e)Section 5, counsel for the Company Co-Issuers and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 22 (except clause (i) of this subsection (b)), and the Initial Purchaser hereby consents to such reliance.
(c) The Co-Issuers acknowledge and agree that the Initial Purchaser may sell Securities to any affiliate of the Initial Purchaser and that any such affiliate may sell Securities purchased by it to the Initial Purchaser. The Co-Issuers acknowledge and agree that the Initial Purchaser may, from time to time, make one or more Exempt Resales following the Closing Date, with respect to which the Initial Purchaser may deliver a copy of the Offering Memorandum.
(d) The Initial Purchaser also represents and agrees that (i) it has 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 (ii) it has only communicated or caused to be communicated and it 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 any Securities, in circumstances in which section 21(1) of the FSMA does not apply to the Co-Issuers.
(e) The Initial Purchaser also represents and agrees that, 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 (the “Relevant Implementation Date”), it has not made and will not make an offer of the Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the 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 the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(i) 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;
(ii) to any legal entity which has two or more of (A) an average of at least 250 employees during the last financial year; (B) a total balance sheet of more than €43,000,000 and (C) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of the Securities to the public” 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 to the Securities, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(f) The Initial Purchaser also represents and agrees that 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 Securities and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.
(g) The Initial Purchaser also represents and agrees that it has not made and, unless it obtains the prior consent of the Parent Companies and the Co-Issuers, will not make any offer relating to the Securities that would constitute a Free Writing Communication, it being understood that a Free Writing Communication that (i) contains only information that describes the final terms of the Securities or their offering and that is included in the Offering Memorandum or (ii) does not contain any material information about the Co-Issuers or their securities that was provided by or on behalf of the Co-Issuers, shall not be an Issuer Free Writing Communication for purposes of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Ihop Corp)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, agrees, severally and not jointly, to purchase from the Company, in each case, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.500% of the principal amount thereofthereof plus accrued interest, if any, from December 1, 2005 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act, ;
(ii) neither it nor any Person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(g) and (e5(h), Xxxxxxx Xxxxx LLP as counsel for the Company Company, and Xxxxxx Xxxxxx & Xxxxxxx LLP as counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchasers of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Company.
Appears in 1 contract
Samples: Purchase Agreement (Triumph Tools & Supply, L.L.C.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofthereof plus accrued interest, if any, from November 19, 2012 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(cb) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (a) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may 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.
(d) The Antero Entities acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Antero Entities with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Antero Entities or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Antero Entities shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the Company, $110,000,000 87,000,000 principal amount of Securities at a purchase price equal to 97.00100.65375% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.;
(ii) The the Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its their distribution at any time and (B) otherwise until 40 days after the later of the commencement of the offering of the 12 12 Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.;
(iii) None none of the Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement restriction requirements of Regulation S.S;
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."; and
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such the Initial 13 13 Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company Company, the Guarantors and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
(f) The Company and each of the Guarantors acknowledge and agree that the Initial Purchaser may sell Securities to any affiliate of the Initial Purchaser and that any such affiliate may sell Securities purchased by it to the Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0098% of the principal amount thereof, plus accrued interest from September 27 2005 to the Closing Date. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering MemorandumCircular. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is a Qualified Institutional Buyer (as defined below), (ii) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (iiiii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iiiiv) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"”), as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside ouside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("“Regulation S"”).
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The such Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None none of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement restriction requirements of Regulation S.
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."”
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that that
(i) it 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 only communicate or cause to be communicated any invitation or inducement to engage in an offer to the public in the United Kingdom investment activity (within the meaning of Section 21 of the Public Offers United Kingdom Financial Services and Markets Axx 0000 (the “FSMA”)) received by it in connection with the issue or sale of any Securities Regulations 1995in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 FSMA with respect to anything done by it in relation to the 16 16 Securities Notes in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum Circular (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company and the Guarantor acknowledge and agree that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00100% of the principal amount thereofthereof plus accrued interest, if any, from December 18, 2006 to the Closing Date. The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. As compensation, the Company will pay to the Representative on behalf of the Initial Purchasers an underwriting commission of 0.40% (the “Underwriting Commission”) of the aggregate principal amount of the Securities purchased by the Initial Purchasers on the Closing Date as commissions for the sale of the Securities under this Agreement. In addition, the Company will pay to X.X. Xxxxxx Securities Inc. a structuring fee agreed to in the letter dated December 11, 2006 as compensation for your role as the sole structuring advisor for the Transactions (the “Structuring Fee”). Such payments will be made on the Closing Date.
(b) The Company and the Issuer each understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities ActAct (a “QIB”), an accredited investor within the meaning of Rule 501(a) under the Securities Act and a Qualified Purchaser (as defined below);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be both QIBs and qualified institutional buyers purchasers ("“Qualified Institutional Buyers"), Purchasers”) as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Securities Exchange Commission (the “Commission”) thereunder (the “Investment Company Act”) in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that each of the Company CEMEX Transaction Parties, the Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (ethrough 6(k), counsel the counsels for each of the Company CEMEX Transaction Parties, the Issuer and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Issuer each acknowledges and agrees that the Initial Purchasers may 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.
(e) Each of the CEMEX Transaction Parties and the Issuer acknowledges and agrees that each of the Initial Purchasers is acting solely in the capacity of an arm's length contractual counterparty to the CEMEX Transaction Parties and the Issuer with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, any CEMEX Transaction Party or the Issuer or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the CEMEX Transaction Parties, the Issuer or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The CEMEX Transaction Parties and the Issuer shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other the Initial Purchaser shall have any responsibility or liability to any CEMEX Transaction Party or the Issuer with respect thereto. Any review by the Representative or any Initial Purchaser of the CEMEX Transaction Parties, the Issuer and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the CEMEX Transaction Parties, the Issuer or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sa De Cv)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company Issuer agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the CompanyIssuer, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule II hereto at a purchase price equal to 97.0092.709% of the principal amount thereof. The Company Issuer shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. Old SAC and the Issuer that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees withwith Old SAC, Merger Corp. the Issuer and the Company Note Guarantors that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees with Old SAC, the Issuer and the Note Guarantors that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.;
(ii) The such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.;
(iii) None none of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement restriction requirements of Regulation S.S;
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S.S";
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the CompanyIssuer; and
(vi) it has complied and will comply in all material respects with all applicable laws and regulations, in each jurisdiction, in which it acquires, offers, sells or delivers Securities or has in its possession or distributed the Preliminary Offering Memorandum or Offering Memorandum at its own expense. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act Xxx 0000 xxx and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act Xxx 0000 (Xxvestment Investment Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company Issuer pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company Issuer shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company Issuer and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) Old SAC, the Issuer and each of the Note Guarantors acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0095.762% of the principal amount thereofthereof plus accrued interest, if any, from November 12, 2009 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein in each of the Time of Sale Information. Each Initial Purchaser, severally and in the Offering Memorandum. The Initial Purchaser not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6 (f)(i) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that any such affiliates of Initial Purchasers shall comply with the provisions of Section 1(b) hereof.
(e) The Company and the Subsidiary Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Subsidiary Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Subsidiary Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Subsidiary Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Subsidiary Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Subsidiary Guarantors with respect thereto. Any review by the Representative or any other Initial Purchaser of the Company, the Subsidiary Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such other Initial Purchaser, as the case may be, and shall not be on behalf of the Company or the Subsidiary Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00(x) 000.000000% of the principal amount thereofthereof plus (y) their respective percentage of $4,747,916.67, the accrued and unpaid interest from January 23, 2008 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex B hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex B hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at (i) a purchase price equal to 97.00100% of the aggregate principal amount thereofof the Securities minus 1.72% (the “Initial Purchasers’ Discount”) of the aggregate principal amount of the Securities if the Acquisition is consummated prior to or concurrently with the issuance of the Securities; or (ii) if the Acquisition is not consummated prior to or concurrently with the issuance of the Securities, the Initial Purchasers’ Discount shall not be deducted from the payment for the Securities on the Closing Date and the aggregate principal amount of the Securities shall be deposited in the Escrow Account and be paid as provided in Section 2(c), subject to the terms of the Escrow Agreement. The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuer understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g)(i), 6(g)(ii) and (e6(i), counsel for the Company Issuer and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuer and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuer and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuer, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuer, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, agrees, severally and not jointly, to purchase from the Company, in each case, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.0% of the principal amount thereof, plus accrued interest, if any, from February 22, 2011 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein in the Time of Sale Information and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act, ;
(ii) neither it nor any Person acting on its behalf has not solicited offers for, or offered or sold, and or will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), McAfee & Xxxx A Professional Corporation, as counsel for the Company Company, and Xxxxxx Xxxxxx & Xxxxxxx LLP as counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchasers of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers and shall not be on behalf of the Company.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00to: 102.500% of the principal amount thereof, plus accrued interest, if any, from December 9, 2019 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Xxxxxx & Xxxxxxx LLP (000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Texas, 77002) at 10:00 A.M., New York City time, on December 12, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Issuers may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(f) Payment for the Securities shall be made by wire transfer in immediately available funds against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuers. The Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(g) The Issuers and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Obligors hereby agree, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell the Securities to the several Initial Purchaser Purchasers as provided herein, and each Initial Purchaser, on the Initial Purchaser agrees basis of the representations, warranties and agreements set forth herein and subject to the terms and conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, $110,000,000 Obligors the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofthereof (the “Purchase Price”) plus accrued interest, if any, from July 9, 2014 to the Closing Date, payable on the Closing Date. The Company shall Obligors will not be obligated to deliver any of the Securities to be delivered hereunder except upon payment for all of the Securities to be purchased as provided herein.
(b) The Obligors understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Time of Sale Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(iA) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) of Regulation D under the Securities Act, ;
(iiB) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the such Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act;
(iiiC) it has solicited not sold, and will solicit offers for not sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(Ai) within the United States States, to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in within the meaning of Rule 144A under the Securities Act ("each, a “QIB”) in transactions pursuant to and meeting the requirements of Rule 144A"), 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 and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and 144A; and
(ii) in each case, in transactions in accordance with Rule 144A and (B) the case of offers outside the United States 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 on upon Regulation S under the Securities Act ("Regulation S").Act; that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Time of Sale Memorandum under the caption “Notice to Investors”;
(cD) In connection with respect to offers and sales of the offer and sale of Securities in reliance on Regulation Soutside the United States, the each Initial Purchaser represents, warrants and agrees that:
that (i) The Securities have it has not been registered under the Securities Act and may not be offered or sold within and will not offer or sell the Securities in the United States or to, or for the benefit or account or benefit of, a U.S. persons except pursuant to an exemption fromperson (in each case, or as defined in transactions not subject to, the registration requirements of the Securities Act.
Regulation S) (ii) The Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (Aa) as part of its their distribution at any time and (Bb) otherwise until 40 days after the later of the commencement of the offering of the Securities pursuant hereto and the Closing Date, only other than in accordance 15 15 with Regulation S or Rule 144A or any other available another exemption from the registration under requirements of the Securities Act.
; (iiiii) None of the Initial Purchaser or neither it nor any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement requirements of Regulation S.
S in connection with the offering of the Securities outside the United States; and (iviii) At at or prior to the confirmation of any sale of the Securities by it to any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase Securities from it during the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such distributor, dealer or person receiving a selling concession, fee or other remuneration 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, as amended (the "“Securities Act"”), and may not be offered or 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 time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in either case in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act or another exemption from the registration requirements of the Securities Act; and in connection with any subsequent sale by you of the Securities covered hereby in reliance on Regulation S under the Securities Act during the period referred to above to any distributor, dealer or person receiving a selling concession, fee or other remuneration, you must deliver a notice to substantially the foregoing effect. Terms used above have the meanings given assigned to them by in Regulation S."S under the Securities Act.
(vE) it has not and will not enter into any contractual arrangement with any distributor with respect to offers and sales of the distribution Securities outside the United States, (i) it understands that no action has been or will be taken in any jurisdiction by the Obligors that would permit a public offering of the Securities, except with its affiliates or with the prior written consent possession or distribution of the Company. Terms used in this Section 2(c) have Preliminary Offering Memorandum, the meanings given to them by Regulation S.
(d) The Initial Purchaser representsTime of Sale Memorandum, warrants and agrees that (i) it has not offered the Offering Memorandum or sold and prior any other offering or publicity material relating to the date six months after the Closing Date will not offer or sell Securities, in 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) jurisdiction where action for the purposes of their businesses or otherwise in circumstances which have not resulted that purpose is required 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; (ii) it has complied and will comply with all applicable provisions laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Securities or distributes the Preliminary Offering Memorandum, the Time of Sale Memorandum, the Offering Memorandum or such other offering or publicity material, in all cases at its own expense, and without limiting the generality of the Financial Services Act 0000 xxx foregoing, it has complied and will so comply with each of the Public Offers restrictions and laws applicable to each jurisdiction mentioned under the caption “Plan of Distribution” in the Preliminary Offering Memorandum, the Time of Sale Memorandum or the Offering Memorandum;
(F) offers and sales of the Securities Regulations 1995 with respect have only been made, and will only be made, by the Initial Purchasers or affiliates thereof qualified to anything done do so in the jurisdictions in which such offers and sales are made; and
(G) it has not used, authorized use of, referred to, distributed or participated in the planning for use of, and will not use, authorize use of, refer to, distribute 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 Preliminary Offering Memorandum, the Time of Sale Memorandum and the Offering Memorandum; (ii) any written communication that contains either (a) no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) or (b) “issuer information” that was included (including through incorporation by it reference) in relation to the 16 16 Securities in, from or otherwise involving Time of Sale Memorandum and the United KingdomOffering Memorandum; and (iii) it has only issued any written communication relating to or passed on and will only issue that contains the preliminary or pass on in the United Kingdom any document received by it in connection with the issue final terms of the Securities to a person who is a kind described or their offering or other information that was included (including through incorporation by reference) in Article 11(3the Time of Sale Memorandum or the Offering Memorandum; (iv) of any Additional Written Communication (as defined in Section 4(b)); or (v) any written communication prepared by such Initial Purchaser and approved by the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed onPartnership in advance in writing.
(ec) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Obligors and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (ethrough 5(i), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 22(b) above, and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.875% of the aggregate principal amount of the Securities thereof. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g)(i) and (e6(h), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuers, the Guarantors or any other person. Additionally, neither the Representatives nor any other Initial Purchaser is advising the Issuers, the Guarantors, or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Initial Purchaser shall have any responsibility or liability to the Issuers and the Guarantors with respect thereto. Any review by the Representatives or any Initial Purchaser of the Issuers and the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofthereof plus accrued interest, if any, from March 31, 2014 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e)Section 6, counsel for the Company Issuers and counsel for the Initial Purchaser, respectively, Purchasers may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 21(b) (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Calumet Parties acknowledge and agree that the Initial Purchasers may 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.
(e) The Calumet Parties acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Calumet Parties with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Calumet Parties or any other person. Additionally, neither the Representatives nor any other Initial Purchaser is advising the Calumet Parties or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Calumet Parties shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Initial Purchaser shall have any responsibility or liability to the Calumet Parties with respect thereto. Any review by the Representatives or any Initial Purchaser of the Calumet Parties and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of the Calumet Parties or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.500% of the principal amount thereofthereof plus accrued interest, if any, from April 30, 2013 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(h), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuers and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person in connection with the transactions contemplated hereby as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of the Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.00(i) 97 1/2% of the principal amount thereofplus premium of 3% thereof plus (ii) accrued interest for each Note. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) 1. The Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale in an off-shore transaction exempt from registration under the Securities Act, (ii) it has not solicited offers for, or offered or soldsold the Securities, and will not solicit offers for, or offer or sell, the Securities Securities, by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional BuyersQUALIFIED INSTITUTIONAL BUYERS"), as defined in Rule 144A under the Securities Act ("Rule RULE 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").S.
(c) 2. In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) A. 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser B. It has not offered and or sold the Securities, and will not offer and sell the Securitiesor sell, (A) as any Securities constituting part of its distribution at any time and (B) otherwise until 40 days after this offering within the later of the commencement of the offering of the Securities and the Closing Date, only United States except in accordance 15 15 with Rule 903 of Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of C. Neither the Initial Purchaser or nor any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it D. It has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(cII(2) have the meanings given to them by Regulation S.
(d) 3. The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act Xxx 0000 xxx and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act Xxx 0000 (Xxvestment Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) 4. The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser it to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such the Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(dSection V(4) and (e7), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2II, and the Initial Purchaser hereby consents to such reliance.
5. The Company acknowledges and agrees that the Initial Purchaser may sell Securities to any of its affiliates and that any such affiliate may sell Securities purchased by it to the Initial Purchaser.
6. The Initial Purchaser agrees that it will not directly or indirectly purchase, offer, sell or deliver any Securities or have in its possession or distribute or publish the Offering Memorandum (or any amendment or supplement thereto) or any other offering material in or from any country or jurisdiction except under circumstances that will result in compliance with any applicable laws and regulations.
7. The Initial Purchaser represents, warrants and agrees that, because the Offering Memorandum has not been and will not be registered with the Swedish Financial Supervisory Authority: (i) the Offering Memorandum shall not be made available, and (ii) the Securities shall not otherwise be marketed or offered for sale in Sweden, unless any of the foregoing actions are deemed not to be an offer to the public in Sweden under the Financial Instruments Trading Act (1991:980).
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell the Securities to the several Initial Purchaser Purchasers as provided in this Agreement, and each Initial Purchaser, on the Initial Purchaser agrees basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.75% of the principal amount thereofthereof plus accrued interest, if any, from May 4, 2020 to the Closing Date (as defined below). The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraphs (a) and (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (ii) it is not acquiring the Securities with a view to any distribution thereof that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction, (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation REGULATION D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iiiiv) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional BuyersQUALIFIED INSTITUTIONAL BUYERS"), as defined in Rule 144A under the Securities Act ("Rule RULE 144A"), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and and, in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").S.
(c) In connection with It is understood and acknowledged that upon original issuance thereof, and until such time as the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered same is no longer required 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 pursuant to an exemption from, or in transactions not subject to, the registration applicable requirements of the Act, (1) each of the Securities Act.
(iiand each security issued in exchange therefor or in substitution thereof) The Initial Purchaser has offered and sold issued pursuant to Rule 144A shall bear the Securitiesfollowing private placement legend on the face thereof: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and will offer and sell the SecuritiesAS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) as part of its distribution at any time and TO THE COMPANY, (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing DatePURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, only in accordance 15 15 with Regulation (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S or Rule 144A or any other available exemption from registration under the Securities Act.
UNDER THE SECURITIES ACT, (iiiE) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (the "Securities Act"TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), and may not be offered 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 time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e2), counsel for the Company and for the Initial Purchaser(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, respectivelyOR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SECURITIES, and the Initial Purchaser hereby consents to such reliance.FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to terms and conditions set forth herein, the Company agrees to issue and sell to each of the Initial Purchasers, severally and not jointly, and each of the Initial Purchasers, severally and not jointly, agrees to purchase from the Company, the principal amount of Firm Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.5% of the principal amount thereof, plus accrued interest from November 2, 2006 to the Firm Closing Date. The Company shall not be obligated to deliver any of the Firm Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell hereby grants the option to the Initial Purchaser Purchasers to purchase, severally and not jointly, the Option Securities at the same purchase price as the Initial Purchasers will pay for the Firm Securities and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of the Option Securities at a purchase price equal to 97.00% be sold to each Initial Purchaser shall be that principal amount which bears the same ratio to the aggregate principal amount of Option Securities being purchased as the principal amount thereofof Firm Securities set forth opposite the name of such Initial Purchaser in Schedule I hereto (or such number increased as set forth in Section 7). The option may be exercised in whole or in part at any time and from time to time upon notice in writing or by facsimile by Lxxxxx, on behalf of itself and the other Initial Purchasers, to the Company setting forth the amount (which shall be an integral multiple of $1,000 principal amount) of Option Securities as to which such option is being exercised; provided that any Option Closing Date (as defined below) must not be obligated more than 13 days subsequent to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided hereinFirm Closing Date.
(bc) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is a Qualified Institutional Buyer (as defined below), (ii) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (iiiii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iiiiv) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"”), as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.144A.
(d) The Company and the Guarantor acknowledge and agree that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser represents, warrants and agrees that (i) it has not offered or sold and prior to the date six months after the Closing Date will not offer or any such affiliate may 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish it to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the an Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Notes to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Notes set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a price equal to 98.50% of the principal amount thereof plus accrued interest, if any, from August 17, 2017 to the Closing Date (as defined below).
(b) The Issuer and the Guarantors understand that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuer and the Guarantors and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuer and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above, and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuer and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representative, at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 at 10:00 A.M., New York City time, on August 17, 2017, or at such other time or place on the same or such other date, not later than the third business day thereafter, as the Representative and the Company may agree upon in writing. The time and date of such payment for the Notes is referred to herein as the “Closing Date.”
(f) Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the nominee of The Depository Trust Company (“DTC”), for the respective accounts of the several Initial Purchasers of the Securities to be purchased on such date of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for inspection by the Representative at the office of X.X. Xxxxxx Securities LLC set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(g) The Issuer and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuer, the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser and shall not be on behalf of the Issuer, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a purchase price equal to 97.0098.463% of the principal amount thereofthereof plus accrued interest, if any, from March 17, 2003 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration "QIB") and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A"), 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 ) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f), 5(g) and (e5(h), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.25% of the principal amount thereofthereof plus accrued interest, if any, from May 6, 2014 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act;
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) initial offering except within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").144A; and
(civ) In connection with the offer and sale of Securities in reliance on Regulation Sit has not solicited offers for, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered under the Securities Act and may not be or offered or sold within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the Securitiessold, and will not solicit offers for, or offer and sell or sell, the Securities, (A) Securities as part of its distribution at any time and (B) otherwise until 40 days after the later initial offering except outside of the commencement of the offering of the Securities and the Closing Date, only United States in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Actrestrictions set forth in Annex D hereto.
(iiib) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (a) above (including Annex D hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may 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.
(d) The Antero Entities acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Antero Entities with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Antero Entities or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Antero Entities shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the other terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.75% of the principal amount thereofthereof plus accrued interest from August 1, 2020 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Each of the Company and the Subsidiary Guarantors understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex E hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex E hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) Each of the Company and the Subsidiary Guarantors acknowledges and agrees that the Initial Purchasers may 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.
(e) Each of the Company and Subsidiary Guarantors acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchasers of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchasers, and shall not be on behalf of the Company.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00100% of the principal amount thereofthereof plus accrued interest, if any, from December 18, 2006 to the Closing Date. The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. As compensation, the Company will pay to the Representative on behalf of the Initial Purchasers an underwriting commission of 0.30% (the “Underwriting Commission”) of the aggregate principal amount of the Securities purchased by the Initial Purchasers on the Closing Date as commissions for the sale of the Securities under this Agreement. In addition, the Company will pay to X.X. Xxxxxx Securities Inc. a structuring fee agreed to in the letter dated December 11, 2006 as compensation for your role as the sole structuring advisor for the Transactions (the “Structuring Fee”). Such payments will be made on the Closing Date.
(b) The Company and the Issuer each understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities ActAct (a “QIB”), an accredited investor within the meaning of Rule 501(a) under the Securities Act and a Qualified Purchaser (as defined below);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be both QIBs and qualified institutional buyers purchasers ("“Qualified Institutional Buyers"), Purchasers”) as defined in the Investment Company Act of 1940, as amended, and the rules and regulations of the Securities Exchange Commission (the “Commission”) thereunder (the “Investment Company Act”) in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that each of the Company CEMEX Transaction Parties, the Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (ethrough 6(k), counsel the counsels for each of the Company CEMEX Transaction Parties, the Issuer and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Issuer each acknowledges and agrees that the Initial Purchasers may 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.
(e) Each of the CEMEX Transaction Parties and the Issuer acknowledges and agrees that each of the Initial Purchasers is acting solely in the capacity of an arm's length contractual counterparty to the CEMEX Transaction Parties and the Issuer with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, any CEMEX Transaction Party or the Issuer or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the CEMEX Transaction Parties, the Issuer or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The CEMEX Transaction Parties and the Issuer shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other the Initial Purchaser shall have any responsibility or liability to any CEMEX Transaction Party or the Issuer with respect thereto. Any review by the Representative or any Initial Purchaser of the CEMEX Transaction Parties, the Issuer and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the CEMEX Transaction Parties, the Issuer or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sa De Cv)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a price equal to 100.00% of the principal amount thereof (the “Purchase Price”) plus accrued interest from December 22, 2023 to the Closing Date (as defined below).
(b) The Company and the Guarantors understand that the Initial Purchasers intend to offer the Securities for resale on the terms set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and the Guarantors and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), counsel for the Company and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Xxxxxx & Xxxxxxx LLP at 10:00 A.M. New York City time on January 19, 2024, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.” Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the respective accounts of the several Initial Purchasers of the Securities to be purchased on such date of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for inspection by the Representative at the office of X.X. Xxxxxx Securities LLC set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(f) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Each of the Company and the Guarantors shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company and the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Bread Financial Holdings, Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company 100.00% of the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00105.28% of the principal amount thereofthereof plus accrued interest from September 1, 2021 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Time of Sale Information and Final Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s-length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any of the Initial Purchasers of the Company and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.375% of the aggregate principal amount thereofof the Securities. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g)(i), 6(h) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.985% of the principal amount thereofthereof plus accrued interest, if any, from March 15, 2019 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 10:00 A.M., New York City time, on March 15, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(f) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(g) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Centennial Resource Development, Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the Initial Purchaser as provided in this Agreement, and the Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the Securities at a price equal to 98.500% of the aggregate principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereofSecurities. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes intends to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d6(f)(i) and (e6(h), counsel for the Company and counsel for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser, and compliance by the Initial Purchaser and its compliance with its agreements agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the Initial Purchaser hereby consents to such reliance.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchaser may offer and sell Securities to or through any affiliate of the Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through the Initial Purchaser.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, the Initial Purchaser is not advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchaser shall not have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Firm Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Firm Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.25% of the principal amount thereofthereof plus accrued interest, if any, from August 13, 2012 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The In addition, the Company hereby agrees, on the basis of the representations and warranties, covenants and agreements of the Initial Purchaser has advised Merger Corp. that it proposes Purchasers contained herein and subject to offer the Securities for resale upon all the terms and subject to the conditions set forth herein and herein, in the Offering Memorandum. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant order to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or cover sales in any manner involving a public offering within the meaning of Section 4(2) excess of the Securities Act and (iii) has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Firm Securities, as part of its offering, only (A) within the United States to persons whom it reasonably believes issue and sell to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered under Purchasers 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the Additional Securities, and will offer the Initial Purchasers shall have the right to purchase, severally and sell not jointly, up to $40,000,000 aggregate principal amount of Additional Securities at the Securities, (A) as purchase price referred to in the preceding paragraph. The Representatives may exercise this right on behalf of the Initial Purchasers in whole or from time to time in part of its distribution at any time and (B) otherwise until 40 by giving written notice not later than 30 days after the later of the commencement of the offering of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance this Agreement. Any exercise notice shall specify the principal amount of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) it has not offered or sold and prior to the date six months after the Closing Date will not offer or sell any Additional 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (Purchasers and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of on which such confirmation of sale). In addition Additional Securities are to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.be
Appears in 1 contract
Samples: Purchase Agreement (Hornbeck Offshore Services Inc /La)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the Purchaser as provided in this Agreement, and the Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the principal amount of Securities pursuant to up to four Closings as described in Section 2 at a price and on the terms set forth in this Agreement. Notwithstanding the foregoing, the Company will not be obligated to issue and sell the Securities and the Purchaser will not be obligated to purchase price equal the Securities unless the Company elects to 97.00% of the principal amount thereofgive an initial Closing Notice pursuant to Section 2. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the such applicable Securities to be purchased on the applicable Closing Date as provided herein.
(b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The Purchaser is a qualified institutional buyer within the meaning of Rule 144A under the Securities have Act (a “QIB”) or an accredited investor within the meaning of Rule 501(a) under the Securities Act;
(ii) The Purchaser is acquiring the Securities for its own account and not been registered with a view towards, or for resale in connection with, the public sale or distribution thereof, other than in connection with any syndication of the Securities to QIBs or to institutional accredited investors within the meaning of Rule 501(a) 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 pursuant to an exemption fromsales registered or exempted under the Securities Act; provided, or in transactions not subject tohowever, that by making the representations herein, the registration requirements Purchaser does not agree to hold any of the Securities Act.
(ii) The Initial Purchaser has offered for any minimum or other specific term and sold reserves the Securities, and will offer and sell right to dispose of the Securities, (A) as part of its distribution Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act;
(iii) The Purchaser and (B) otherwise until 40 days after its advisors, if any, have been furnished with all materials relating to the later business, finances and operations of the commencement Company and materials relating to the offer and sale of the Securities which have been requested by the Purchaser. The Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Purchaser or its advisors, if any, or its representatives shall modify, amend or affect the Purchaser’s right to rely on the Company’s representations and warranties contained herein. The Purchaser understands that its investment in the Securities involves a high degree of risk. The Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities; and
(iv) The Purchaser understands that no Governmental Authority has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities ActSecurities.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(dc) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions opinion to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e5(e), Xxxxxx & Xxxxxxx LLP, counsel for the Company and for the Initial Purchaser, respectivelyCompany, may rely upon the accuracy on a Closing Date of the representations and warranties of the Initial Purchaser, and compliance by the Purchaser and its compliance with its agreements agreements, contained in this Section 2paragraph (b) above, and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (GeoEye, Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.75% of the principal amount thereofthereof plus accrued interest, if any, from September 23, 2020 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e)6(h) hereof, counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its compliance by the Initial Purchasers with its agreements their agreements, in each case, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.4% of the principal amount thereofthereof plus accrued interest, if any, from March 16, 2012 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that (1) such sale or delivery is being made in reliance on Rule 144A and in each case144A, in transactions in accordance with Rule 144A and (B2) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been and, except as described in the Time of Sale Information, will not be registered under the Securities Act and (3) the Securities may not be offered offered, sold or sold within otherwise transferred except as described in the United States or to, or for Time of Sale Information; or
(B) in accordance with the account or benefit of, U.S. persons except pursuant to an exemption from, or restrictions set forth in transactions not subject to, the registration requirements of the Securities ActAnnex C hereto.
(iic) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 so long as (i) such offers and sales are consistent with Section 1(b) and (ii) the Initial Purchasers remain liable for the actions or omission of any such authorized affiliate to the same extent as if such actions or omissions were performed by the Initial Purchaser.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Hornbeck Offshore Services Inc /La)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees and the Guarantors, jointly and severally, agree to issue and sell to each of the Initial Purchaser Purchasers and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097.875% of the principal amount thereof. The Company and the Guarantors shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is a Qualified Institutional Buyer 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 Securities Act, (iiiii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iiiiv) in connection with the Exempt Resales, it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 Eligible Purchasers in accordance with Rule 144A this Agreement and (B) outside on the United States to persons other than U.S. persons in reliance on Regulation S under terms contemplated by the Securities Act ("Regulation S")Offering Memorandum.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.;
(ii) The such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.;
(iii) None neither of the such Initial Purchaser or nor any of its affiliates or nor any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.S;
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it such Initial Purchaser will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."; and
(v) it such Initial Purchaser has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser representsPurchaser, warrants severally and not jointly, represents and agrees that (i) it has not offered or sold and and, prior to the date six months after the Closing Date date of issuance 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); (ii) it has only communicated or caused to be communicated and 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) received by it in connection with the issue or sale of any Securities in circumstances in which Section 21(1) of the Financial Services and Markets Xxx 0000 does not apply to the Company; and (iii) it has complied and will comply with all applicable provisions of the Financial Services Act and Markets Xxx 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by such affiliate to an Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0095.75% of the principal amount thereofthereof plus accrued interest, if any, from June 29, 2012 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e)Section 6, counsel for the Company Issuers and counsel for the Initial Purchaser, respectively, Purchasers may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 21(b) (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Calumet Parties acknowledge and agree that the Initial Purchasers may 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.
(e) The Calumet Parties acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Calumet Parties with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Calumet Parties or any other person. Additionally, neither the Representatives nor any other Initial Purchaser is advising the Calumet Parties or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Calumet Parties shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Initial Purchaser shall have any responsibility or liability to the Calumet Parties with respect thereto. Any review by the Representatives or any Initial Purchaser of the Calumet Parties and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of the Calumet Parties or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097.25% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) The 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None none of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Selfix Inc /De/)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.506% of the principal amount thereofthereof plus accrued interest, if any, from November 30, 2011 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), Xxxxx & Xxxxxxxxx, LLP, as counsel for the Company Company, and Xxxxxx & Xxxxxx LLP, as counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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, subject to the Initial Purchasers’ continuing compliance with their representations, warranties and covenants herein.
(e) The Company and the Guarantor acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantor with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantor or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantor with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantor or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Swift Energy Co)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained set forth herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company Sub agrees to issue and sell the Securities to the several Initial Purchaser Purchasers as provided in this Agreement, and each Initial Purchaser, on the Initial Purchaser agrees basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from Merger Sub the Company, $110,000,000 respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.50% of the principal amount thereofthereof plus accrued interest, if any, from October 19, 2010 to the Closing Date (the “Purchase Price”). The Company In the event the Merger is not consummated on the Closing Date, the Initial Purchasers shall pay to Merger Sub an additional amount equal to 2.50% of the aggregate principal amount of the Securities (the “Initial Purchasers’ Commission”). Merger Sub will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Merger Sub understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) neither it nor any person engaged by it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) neither it nor any person engaged by it has solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Merger Sub and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(dSection 6(f) and (eSection 6(g), counsel for the Company Merger Sub and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) Merger Sub, the Company and each of the Guarantors acknowledge and agree that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) Merger Sub, the Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to Merger Sub, the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, Merger Sub, the Company, the Guarantors or any other person. Additionally, neither the Representatives nor any other Initial Purchaser is advising Merger Sub, the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Merger Sub, the Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Initial Purchaser shall have any responsibility or liability to Merger Sub, the Company or the Guarantors with respect thereto. Any review by the Representatives or any Initial Purchaser of Merger Sub, the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of Merger Sub, the Company, the Guarantors or any other person. Merger Sub, the Company and the Guarantors agree that they will not claim that the Initial Purchasers, or any of them, has rendered services of any nature, or owes a fiduciary or similar duty to Merger Sub, the Company or the Guarantors, in connection with the purchase and sale of the Securities pursuant to this Agreement or the process leading thereto.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.625% of the aggregate principal amount thereofof the Securities. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g)(i), 6(h) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofthereof plus accrued interest, if any, from June 2, 2014 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer (“QIB”) within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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, however, that any such affiliate shall be subject to the same obligations as its affiliated Initial Purchaser hereunder, and that such Initial Purchaser shall be liable for any breach of these obligations by such affiliate.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.625% of the principal amount thereofthereof plus accrued interest, if any, from December 16, 2019 to the Closing Date. The Company shall Partnership will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Vxxxxx & Exxxxx L.L.P. at 10:00 A.M., New York City time, on December 20, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Issuers may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(f) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuers to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Partnership.
(g) Each of the Issuers and the Guarantors acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchasers, and each of the Initial Purchaser agrees Purchasers agrees, severally and not jointly, to purchase from the Company, $110,000,000 the aggregate principal amount of Securities set forth opposite its name in Schedule 1 hereto at a purchase price equal to 97.0097% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased from the Company as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Final Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"”), as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").S.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has Purchasers have offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None Neither of the Initial Purchaser or Purchasers nor any of its their respective affiliates or nor any other person acting on its their behalf has engaged or will engage in any directed selling efforts (as defined in Regulation S) with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it the Initial Purchasers will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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. Securities Act of 1933, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."”
(v) it has The Initial Purchasers have not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its their affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by such Initial Purchaser representsto any purchaser of any of the Securities purchased by such Initial Purchaser from the Company pursuant hereto, warrants such Initial Purchaser shall furnish to that purchaser a copy of the Final Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale), but excluding any document incorporated by reference therein. In addition to the foregoing, each Initial Purchaser, severally and not jointly, acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(d), 5(e) and 5(f) counsel for the Company and for the Initial Purchasers, respectively, may rely upon the accuracy of the representations and warranties of each Initial Purchaser and their compliance with their agreements contained in this Section 2, and each Initial Purchaser hereby consents to such reliance.
(e) The Company acknowledges and agrees that each Initial Purchaser may sell Securities to any affiliate of such Initial Purchaser and that any such affiliate may sell Securities purchased by it to such Initial Purchaser.
(f) Each Initial Purchaser, severally and not jointly, agrees that:
(i) it has not offered or sold and and, prior to the date six months after the Closing Date 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 United Kingdom Public Offers of Securities Regulations 1995; 1995 (as amended);
(ii) it has only communicated or caused to be communicated and 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 United Kingdom Financial Services and Markets Axx 0000 (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; and
(iii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 FSMA with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; .
(iv) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (iiithe “Relevant Implementation Date”) it has only issued or passed on not made and will only issue or pass on in the United Kingdom any document received by it in connection with the issue not make an offer of the Securities to a person who is a kind described the public in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, that Relevant Member State prior to or simultaneously the publication of a prospectus in relation to the 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 confirmation of sale by Prospectus Directive, except that it may, with effect from and including the Initial Purchaser to any purchaser of any Relevant Implementation Date, make an offer of the Securities purchased by to the Initial Purchaser from public in that Relevant Member State at any time:
(a) to legal entities which are authorized or regulated to operate in the Company financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which meets two or more of the following criteria: (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,00,000; and (3) an annual net turnover of more than €50,000,000, in each case as determined in accordance with the Prospectus Directive and as shown in its last annual or consolidated accounts; or
(c) in any other circumstances which do not require the publication of a prospectus pursuant heretoto Article 3 of the Prospectus Directive. For the purposes of this clause (f), the Initial Purchaser shall furnish to that purchaser a copy expression an “offer of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior Securities to the date public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means, presenting sufficient information on the terms of such confirmation of sale). In addition the offer and the Securities to be offered, so as to enable an investor to decide to purchase or subscribe to the foregoingSecurities, as the Initial Purchaser acknowledges and agrees same may be varied in that Relevant Member State by any measure implementing the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained Prospectus Directive in this Section 2, that Member State and the Initial Purchaser hereby consents to such relianceexpression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in the applicable Relevant Member State.
Appears in 1 contract
Samples: Purchase Agreement (Activant Solutions Holdings Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.75% of the principal amount thereofthereof plus accrued interest, if any, from March 2, 2011 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the no registration opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(j), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantor acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantor with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantor or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantor with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantor, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantor or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.25% of the principal amount thereofthereof plus accrued interest, if any, from February 9, 2017 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer (a “QIB”) within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (“Rule 144A”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except (the “Exempt Resales”):
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(c) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00102.525% of the principal amount thereofthereof plus accrued interest, if any, from April 1, 2017 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (e6(i), counsel for the Company and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company hereby agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a price equal to 97.5% of the principal amount thereof (the “Purchase Price”) plus accrued interest, if any, from May 13, 2013.
(b) The Company understands that the Initial Purchasers intend to offer the Securities for resale on the terms set forth in the Offering Time of Sale Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to meaning of Rule 144A (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) under the Securities Act, ;
(ii) it has not solicited offers for, or offered or sold, 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(a)(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States States, to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under and in connection with each such sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; and
(B) in the case of offers outside the United States 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 on upon Regulation S under the Securities Act ("Regulation S")Act; that, in each case, in purchasing such Securities are deemed to have represented and agreed as provided in the Offering Memorandum under the caption “Notice to Investors”.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above, and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.25% of the principal amount thereofthereof plus accrued interest, if any, from April 27, 2011 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(cb) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may 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.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.40% of the principal amount thereofthereof plus accrued interest, if any, from July 6, 2021 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (e6(i), counsel for the Company and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.2675% of the principal amount thereofthereof plus accrued interest, if any, from November 14, 2012 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser representsTime of Sale Information, warrants toincluding, and agrees withwithout limitation, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to on a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and placement basis in each caseof Xxxxxxx, in transactions in accordance with Rule 144A Xxxxxxxx, Xxxxxxx, Xxxxxx and British Columbia (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S"“Canadian Jurisdictions”).
(c) In connection with the offer . Each Initial Purchaser, severally and sale of Securities in reliance on Regulation Snot jointly, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered it is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act (a “QIB”) and may not be offered or sold an accredited investor within the United States or to, or for the account or benefit of, U.S. persons except pursuant to an exemption from, or in transactions not subject to, the registration requirements meaning of Rule 501(a) of Regulation D under the Securities Act.Act (“Regulation D”);
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 and will not result in is an offer to the public in the United Kingdom “accredited investor” within the meaning of the Public Offers of Securities Regulations 1995; (ii) it has complied National Instrument 45-106 – Prospectus and will comply with all applicable provisions Registration Exemptions of the Financial Services Act 0000 xxx the Public Offers of Canadian Securities Regulations 1995 with respect Administrators (“NI 45-106”), was not created or used solely to anything done by it in relation to the 16 16 Securities in, from purchase or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind hold securities as an accredited investor as described in Article 11(3paragraph (m) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 definition of “accredited investor” in Section 1.1 of NI 45-106 and is purchasing the Securities as principal or is a person deemed to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of purchasing the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser as principal pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.NI 45-106;
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 4 hereto at a purchase price equal to 97.0098.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities and the shares of Common Stock issuable upon conversion thereof contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser has advised Merger Corp. is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person; notwithstanding the foregoing, each Initial Purchaser acknowledges solely for the purposes of compliance with Regulation FD that it proposes is and has been acting as a person who owes a duty of trust or confidence to the Company as described in Rule 100(b)(2)(i) of Regulation FD promulgated under the Securities Act.
(c) The Initial Purchasers have advised the Company that they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, to and agrees with, Merger Corp. and with the Company that (i) it is purchasing the Securities pursuant to a private sale exempt an 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"”), as defined in Rule 144A under the Securities Act ("“Rule 144A"”), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.144A.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i1) 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 and will not result in an offer to the public in the United Kingdom within the meaning of the United Kingdom Public Offers of Securities Regulations 19951995 (as amended), (2) (i) 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 (ii) 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 United Kingdom Financial Services and Markets Axx 0000 (the “FSMA”)) by the Company; (ii3) 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 Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Company or the Guarantors; and (4) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 FSMA with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date Time of such confirmation of sale)Sale Information. In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections Section 5(d), (e) and (eg), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Manor Care Inc)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers (and the Guarantor agrees to issue the Guarantees) as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a purchase price equal to 97.0099.03% of the principal amount thereofthereof plus accrued interest, if any, from May 23, 2002 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration "QIB") and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("Rule 144A"), 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 ) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and the Guarantor and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(g), 5(h) and (e5(i), counsel for the Company Company, counsel for the Guarantor and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Samples: Purchase Agreement (Sysco Corp)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0096.54% of the principal amount thereofthereof plus accrued interest, if any, from June 30, 2010 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
(e) The Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Entertainment Properties Trust)
Purchase and Resale of the Securities. (a) On The Partnership agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Partnership the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.00(i) in the case of the 2025 Notes, 98.758125% of the principal amount thereof and (ii) in the case of the 2027 Notes, 98.758125% of the principal amount thereof, in each case, plus accrued interest, if any, from June 18, 2020 to the Closing Date (as defined below). The Company shall Partnership will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Partnership understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Partnership and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e)6(g) hereof, counsel for the Company Partnership and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Partnership acknowledges and agrees that the Initial Purchasers may 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.
(e) Payment for and delivery of the Securities will be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 10:00 A.M., New York City time, on June 18, 2020, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative and the Partnership may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(f) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Partnership to the Representative against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Initial Purchasers, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Partnership. An electronic copy of the Global Note will be made available for inspection by the Representative not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(g) The Partnership acknowledges and agrees that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Partnership with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Partnership or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Partnership or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Partnership shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchasers shall have no responsibility or liability to the Partnership with respect thereto. Any review by the Representative or any Initial Purchaser of the Partnership and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Partnership or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0099.18% of the principal amount thereofthereof for the 6 1/4% Notes due 2009 and 97.627% of the principal amount for the 6 7/8% Notes due 2029. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and and, in each case, in transactions in accordance with Rule 144A 144A, (B) to a limited number of other institutional accredited investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D), and (BC) outside the United States to persons other than U.S. persons in reliance on on, and in accordance with, Regulation S S. Each Initial Purchaser, severally and not jointly, represents and warrants to, and agrees with, the Company that it is an accredited investor within the meaning of Rule 501(a) under the Securities Act ("Regulation S")Act.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Rule 903 of Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."until
(v) it It has not and will not enter into any contractual arrangement with any distributor with respect to the distribution or delivery of the Securities, except with its affiliates or with the prior written consent of the CompanyIssuers. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx 1986 and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 0000 1986 (Xxvestment Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Acquisition Sub and the Company agree that upon the consummation of the Merger, the Company will issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 3 hereto at a purchase price equal to 97.0097.50% of the principal amount thereofthereof plus accrued interest, if any, from June 1, 2010 to the Closing Date, payable on the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Acquisition Sub (and from and after the execution of the Joinder Agreement, the Company andand the Guarantors), and for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(h) and (e6(j), counsel for the Acquisition Sub, the Company and the Guarantors and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Acquisition Sub, and upon execution and delivery of the Joinder Agreement, the Company and the Guarantors acknowledge and agree that the Initial Purchasers may 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.
(e) The Acquisition Sub, and upon execution and delivery of the Joinder Agreement, the Company and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Acquisition Sub, the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Acquisition Sub, the Company, the Guarantors or any other person. Additionally, no Initial Purchaser is advising the Acquisition Sub, the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Acquisition Sub, the Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Initial Purchaser shall have any responsibility or liability to the Acquisition Sub, the Company or the Guarantors with respect thereto. Any review by any Initial Purchaser of the Acquisition Sub, the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Initial Purchaser, as the case may be, and shall not be on behalf of the Acquisition Sub, the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Sugarloaf Gwinnett Entertainment Company, L.P.)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097.25% of the principal amount thereofthereof plus any additional amount of Securities that such Initial Purchaser may be obligated to purchase pursuant to the provisions of Section 7 hereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities (a) by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D"), (b) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (c) in any jurisdiction other than jurisdictions in which such Initial Purchaser is qualified to do so and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), ) as defined in Rule 144A under the Securities Act ("Rule 144A")Act, 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 Qualified Institutional Buyer 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 in accordance with Rule 144A 144A. Each Initial Purchaser, severally and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation Snot jointly, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Ric Holding Inc)
Purchase and Resale of the Securities. (a) On Each of the Selling Noteholders, severally and not jointly, agrees to sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from each Selling Noteholder, that proportion of the Company, $110,000,000 principal amount of Securities set forth in Schedule 1 opposite the name of such Selling Noteholder, which the principal amount of the Securities set forth in Schedule 2 hereto opposite the name of such Initial Purchaser bears to the aggregate principal amount of the Securities, at a purchase price equal to 97.00100% of the principal amount thereofthereof plus accrued interest, if any, from July 2, 2008 to the Closing Date. The Company shall Selling Noteholders will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. The Company will pay the Representatives the fees set forth in the Alternative Securities Engagement Letter dated December 31, 2007, between the Company and each Representative, as may be amended. The Company will pay each Initial Purchaser (other than the Representatives) a fee set forth in a fee letter dated the date hereof between the Company and such Initial Purchaser.
(b) The Company and the Selling Noteholders understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and the Selling Noteholders and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g), 6(h) and (e6(i), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Selling Noteholders acknowledge and agree that the Initial Purchasers may 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.
(e) The Company, the Guarantors and the Selling Noteholders acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company, the Guarantors and the Selling Noteholders with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company, the Guarantors, the Selling Noteholders or any other person. Additionally, neither the Representatives nor any other Initial Purchaser is advising the Company, the Guarantors, the Selling Noteholders or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company, the Guarantors and the Selling Noteholders shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Initial Purchaser shall have any responsibility or liability to the Company, the Guarantors or the Selling Noteholders with respect thereto. Any review by the Representatives or any Initial Purchaser of the Company, the Guarantors, the Selling Noteholders, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors, the Selling Noteholders or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Lender Processing Services, Inc.)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser agrees, severally and the Initial Purchaser agrees not jointly, to purchase from the CompanyIssuers, $110,000,000 the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.25% of the principal amount thereofthereof plus accrued interest, if any, from March 30, 2021 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities Securities, except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), Xxxxxx & Xxxxxx L.L.P. as counsel for the Company Issuers, and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, as counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuers and the Guarantors acknowledge and agree that each of the Initial Purchasers is acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities and the Guarantees contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own respective advisors concerning such matters and shall be responsible for making their own respective independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative (whether acting on behalf of the Initial Purchasers or itself) or any other Initial Purchaser of the Issuers, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers or the Guarantors.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuer agrees to issue and sell the Securities to the several Managers as provided in this Agreement, and each Manager, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuer the respective principal amount of Securities set forth opposite such Manager’s name in Schedule 1 hereto at a purchase price equal to 97.00100% of the principal amount thereofthereof plus accrued interest, if any, from May 9, 2007 to the Closing Date. The Company shall Issuer will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein. As compensation, the Company will pay to Barclays Bank PLC, on behalf of the Managers, an underwriting commission of 0.43% (the “Underwriting Commission”) of the aggregate principal amount of the Securities purchased by the Managers on the Closing Date as commissions for the sale of the Securities under this Agreement. Such payment will be made on the Closing Date.
(b) The Initial Purchaser has advised Merger Corp. Company and the Issuer each understand that it proposes the Managers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Initial Purchaser Each Manager, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) under the Securities Act, Act and a Qualified Purchaser (as defined below);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 their initial offering except in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser Each Manager acknowledges and agrees that each of the Company CEMEX Transaction Parties, the Issuer and, for purposes of the opinions to be delivered to the Initial Purchaser Managers pursuant to Sections 5(d6(f) and (ethrough 6(k), counsel the counsels for each of the Company CEMEX Transaction Parties, the Issuer and for the Initial PurchaserManagers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Managers, and its compliance by the Managers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the Initial Purchaser each Manager hereby consents to such reliance.
(d) The Company and the Issuer each acknowledge and agree that the Managers may offer and sell Securities to or through any affiliate of a Manager and that any such affiliate may offer and sell Securities purchased by it to or through any Manager.
(e) Each of the CEMEX Transaction Parties and the Issuer acknowledges and agrees that each of the Managers is acting solely in the capacity of an arm's length contractual counterparty to the CEMEX Transaction Parties and the Issuer with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, any CEMEX Transaction Party or the Issuer or any other person. Additionally, neither the Joint Lead Managers nor any other Manager is advising the CEMEX Transaction Parties, the Issuer or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The CEMEX Transaction Parties and the Issuer shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Joint Lead Managers nor any other Manager shall have any responsibility or liability to any CEMEX Transaction Party or the Issuer with respect thereto. Any review by the Joint Lead Managers or any Manager of the CEMEX Transaction Parties, the Issuer and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Joint Lead Managers or such Manager, as the case may be, and shall not be on behalf of the CEMEX Transaction Parties, the Issuer or any other person.
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sa De Cv)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 4 hereto at a purchase price equal to 97.0098.75% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, to and agrees with, Merger Corp. and with the Company that (i) it is purchasing the Securities pursuant to a private sale exempt an 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (HCRC Inc)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.762% of the principal amount thereofof the Securities plus accrued interest, if any, from June 19, 2003 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Samples: Purchase Agreement (Science Applications International Corp)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the Initial Purchaser as provided in this Agreement, and the Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of Securities at a purchase price equal to 97.00% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein herein, agrees to purchase from the Company the aggregate principal amount of Securities set forth in Schedule 1 hereto at a price equal to 93% of the principal amount thereof (the “Purchase Price”). The offering and sale of the Securities is hereinafter referred to as the “Offering.”
(b) The Company understands that the Initial Purchaser intends to offer the Securities for resale on the terms set forth in the Offering MemorandumTime of Sale Information. The Initial Purchaser represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States except to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").144A.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d6(f) and (e6(g), counsel counsels for the Company and counsel for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser, and compliance by the Initial Purchaser and its compliance with its agreements agreements, contained in this Section 2paragraph (c) above, and the Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchaser may offer and sell Securities to or through any affiliate of the Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through the Initial Purchaser.
(e) Payment for the Securities shall be made by wire transfer in immediately available funds to the account specified by the Company at the offices of McGuireWoods LLP, 1251 Avenue of the Americas, 20xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M. New York City time on May 14, 2019, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Initial Purchaser and the Company may agree upon in writing. The time and date of such payment for the Securities is referred to herein as the “Closing Date.” Payment for the Securities to be purchased on the Closing Date shall be made against delivery to the nominee of The Depository Trust Company (“DTC”), for the accounts of the Initial Purchaser of the Securities to be purchased on such date of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of such Securities duly paid by the Company. The Global Note will be made available for inspection by the Initial Purchaser at the office of JMP Securities LLC set forth above not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(f) The Company acknowledges and agrees that the Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, the Initial Purchaser is not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Initial Purchaser shall have no responsibility or liability to the Company with respect thereto. Any review by the Initial Purchaser of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Initial Purchaser and shall not be on behalf of the Company.
Appears in 1 contract
Samples: Purchase Agreement (RumbleON, Inc.)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchasers, and the each Initial Purchaser Purchaser, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule I hereto at a purchase price equal to 97.0098.5% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Each Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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 to sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part at any time prior to the completion of its offeringdistribution of the Securities, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("“Qualified Institutional Buyers"), ”) as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under S. Terms used in this Section 2(b), and otherwise not defined herein, have the Securities Act ("meanings given to them by Regulation S").S.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) The such Initial Purchaser is a Qualified Institutional Buyer, 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) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.;
(iiiii) The such Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.;
(iiiiv) None none of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts (as such term is defined in Regulation S) with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.S;
(ivv) At at or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."”; and
(vvi) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) ), and otherwise not defined herein, have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i) 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 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); (ii) it has only communicated or caused to be communicated and 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 United Kingdom Financial Services and Markets Xxx 0000 (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; and (iii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 FSMA with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the each Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(c) and (ed), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the each Initial Purchaser and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any of its affiliates and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, of the Company and the Guarantors set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0095.492% of the principal amount thereofthereof plus accrued interest, if any, from July 16, 2018 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) of Regulation D under the Securities Act, Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in within the meaning of Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) in transactions pursuant to it that Rule 144Aand in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(h), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company and the Guarantors acknowledge and agree that the Initial Purchasers may offer and sell Securities to or through any affiliate (as defined in Section 14 hereof) of an Initial Purchaser and that any such affiliate may offer and sell Securities purchased by it to or through any Initial Purchaser; provided that such offers and sales shall be made in a accordance with the provisions of this Agreement.
(e) The Company and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to each of the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Company, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company, the Guarantors or any other person.
Appears in 1 contract
Samples: Purchase Agreement (McClatchy Co)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained set forth herein, the Issuers jointly agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.370% of the principal amount thereofthereof plus accrued interest, if any, from June 17, 2024 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) neither it nor any person engaged by it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) neither it nor any person engaged by it has solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions (and equivalent exempt distribution opinions in respect of the Canadian Private Placement) to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(dSection 6(f)(i) and (eSection 6(f)(ii) and Section 6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this paragraph (b) above (including Annex C hereto) and Section 25, and the each Initial Purchaser hereby consents to such reliance.
(d) Each Issuer and each of the Guarantors acknowledge and agree that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuers and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s-length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors, any other person and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person. The Issuers and the Guarantors agree that they will not claim that the Initial Purchasers, or any of them, have rendered services of any nature, or owe a fiduciary or similar duty to the Issuers or the Guarantors, in connection with the purchase and sale of the Securities pursuant to this Agreement or the process leading thereto.
Appears in 1 contract
Samples: Purchase Agreement (Restaurant Brands International Inc.)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 5 hereto at a purchase price equal to 97.0097.5% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Such Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the such Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it It has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act Xxx 0000 xxx and the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act Xxx 0000 (Xxvestment Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Each Initial Purchaser Purchaser, severally and not jointly, agrees that, prior to or simultaneously with the confirmation of sale by the such Initial Purchaser to any purchaser of any of the Securities purchased by the such Initial Purchaser from the Company pursuant hereto, the such Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections Section 5(d) and (e), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2, and the each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser and that any such affiliate may sell Securities purchased by it to an Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Fah Co Inc)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained set forth herein, the Issuers jointly agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.455% of the principal amount thereofthereof plus accrued interest, if any, from November 19, 2019 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities Act, Act (a “QIB”) and an accredited investor within the meaning of Rule 501(a) of Regulation D under the Securities Act (“Regulation D”);
(ii) neither it nor any person engaged by it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) neither it nor any person engaged by it has solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions (and equivalent exempt distribution opinions in respect of the Canadian Private Placement) to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(dSection 6(f)(i) and (eSection 6(f)(ii) and Section 6(g), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this paragraph (b) above (including Annex C hereto) and Section 25, and the each Initial Purchaser hereby consents to such reliance.
(d) Each Issuer and each of the Guarantors acknowledge and agree that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement (including Annex C hereto).
(e) The Issuers and the Guarantors acknowledge and agree that each Initial Purchaser is acting solely in the capacity of an arm’s-length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or agent of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors, any other person and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person. The Issuers and the Guarantors agree that they will not claim that the Initial Purchasers, or any of them, have rendered services of any nature, or owe a fiduciary or similar duty to the Issuers or the Guarantors, in connection with the purchase and sale of the Securities pursuant to this Agreement or the process leading thereto.
Appears in 1 contract
Samples: Purchase Agreement (Restaurant Brands International Inc.)
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of the Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.25% of the principal amount thereofof the Securities plus accrued interest, if any, from October 26, 2018 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing an accredited investor within the Securities pursuant to a private sale exempt from registration meaning of Rule 501(a) of Regulation D under the Securities Act, Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined within the meaning of Rule 144A under the Securities Act in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions in accordance with Rule 144A and 144A; or
(B) outside the United States to persons other than U.S. persons in reliance on Regulation S under accordance with the Securities Act ("Regulation S")restrictions set forth in Annex C hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(f) and (e6(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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 that such offers and sales shall be made in accordance with the provisions of this Agreement.
(e) The Company acknowledges and agrees that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company with respect thereto. Any review by the Representative or any Initial Purchaser of the Company and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers on the Closing Date the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.5% of the principal amount thereofof Securities purchased by each Initial Purchaser in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule 1 hereto bear to the aggregate principal amount of Securities set forth opposite the names of all such Initial Purchasers. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the Securities pursuant to a private sale exempt from registration meaning of Rule 144A under the Securities ActAct (a “QIB”) and an accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act (“Regulation D”);
(ii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex B hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d) and (e)Section 6, counsel for the Company Issuers and counsel for the Initial Purchaser, respectively, Purchasers may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 21(b) (including Annex B hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Partnership Parties acknowledge and agree that (i) each Initial Purchaser is acting solely in the capacity of an arm’s length contractual counterparty to the Partnership Parties with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or agent of, the Partnership Parties or any other person and (ii) the several Initial Purchasers and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Partnership Parties, and the several Initial Purchasers have no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship. Additionally, neither the Representative nor any other Initial Purchaser is advising the Partnership Parties or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Partnership Parties shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Partnership Parties with respect thereto. Any review by the Representative or any Initial Purchaser of the Partnership Parties and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Partnership Parties or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Issuers agree to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Issuers the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0097.75% of the principal amount thereofthereof plus accrued interest, if any, from January 23, 2008 to the Closing Date. The Company shall Issuers will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Issuers understand that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex B hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company Issuers and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), counsel for the Company Issuers and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex B hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Issuers acknowledge and agree that the Initial Purchasers may 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.
(e) The Issuers and the Guarantors acknowledge and agree that the Initial Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to the Issuers and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Issuers, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Issuers, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuers and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Issuers or the Guarantors with respect thereto. Any review by the Representative or any Initial Purchaser of the Issuers, the Guarantors and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Issuers, the Guarantors or any other person.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein herein, agrees, severally and consummation of the Mergernot jointly, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 Company the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0099.588% of the principal amount thereofof the 3½% Senior Notes due 2007 and 99.126% of the principal amount of the 5 1/8% Senior Notes due 2014 plus accrued interest, if any, from October 1, 2004 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their resale offering of the Securities as contemplated by the Offering Memorandum (the “Resale Offering”) except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(B) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex A hereto.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Samples: Purchase Agreement (Deluxe Corp)
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to the Initial Purchaser Purchaser, and the Initial Purchaser agrees to purchase from the Company, $110,000,000 principal amount of the Securities at a purchase price equal to 97.0099.295% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has advised Merger Corp. the Company that it proposes to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Initial Purchaser represents, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iii) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule 144A"), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and and, in each case, in transactions in accordance with Rule 144A 144A, (B) to a limited number of other institutional accredited investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D), and (BC) outside the United States to persons other than U.S. persons in reliance on on, and in accordance with, Regulation S S. The Initial Purchaser represents and warrants to, and agrees with, the Company that it is an accredited investor within the meaning of Rule 501(a) under the Securities Act ("Regulation S")Act.
(c) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the Securities, and will offer and sell the Securities, (A) as part of its 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 15 15 with Rule 903 of Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its or their behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it It has not and will not enter into any contractual arrangement with any distributor with respect to the distribution or delivery of the Securities, except with its affiliates or with the prior written consent of the CompanyIssuers. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such the Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel for the Company and for the Initial Purchaser, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2, and the Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchaser may sell Securities to any of its affiliates and that any such affiliate may sell Securities purchased by it to the Initial Purchaser.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On The Company, on the basis of ------------------------------------- the representations, warranties and agreements set forth herein, agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Mergerherein, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Date, the Company agrees to issue and sell to the Initial Purchaser and the Initial Purchaser agrees to purchase from the Company, $110,000,000 severally and not jointly, the principal amount of Securities set forth opposite such Initial Purchaser's name in Schedule 1 hereto at a purchase price equal to 97.0090.018% of the principal amount thereof------ thereof plus accrued interest, if any, from October 15, 2001 to the date of payment and delivery. The Company shall will not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) neither it nor any of its affiliates is purchasing acquiring the Securities pursuant to with any intention of offering or selling any of the Securities in a private sale exempt from registration under transaction that would violate the Securities Act, ;
(ii) neither it nor any of its affiliates has not solicited offers for, or offered or sold, and neither it nor any of its affiliates will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and Act; and
(iii) neither it nor any of its affiliates has solicited offers for, or offered or sold, and neither it nor any of its affiliates will solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers")buyers, as defined in Rule 144A under the Securities Act ("Rule 144A"), or if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agentin transactions pursuant to Rule 144A, only when such person has represented to it that and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and 144A, except in each casethe case of the sale to Mozart One, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act L.L.C. ("Regulation SMozart One").
(c) In connection with , wholly- owned by the offer Xxxxxx Xxxxxxx Trust Dated July 13, 1964 and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements affiliate of the Securities Act.
(ii) The Initial Purchaser has offered and sold the SecuritiesCompany, 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 $3,000,000 principal amount of the commencement of the offering of the Securities and the Closing Datesale to Mozart Investments Inc. ("Mozart Investments"), only in accordance 15 15 with Regulation S or Rule 144A or any other available wholly-owned by Xxxxxxxx X. Xxxxxxx and an affiliate of the Company, of $3,000,000 principal amount of Securities (which will be sold pursuant to another exemption from registration under the Securities Act); or
(B) in accordance with the restrictions set forth in Annex A hereto.
(iiic) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d5(f) and (e5(g), counsel for the Company and for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers and its their compliance with its their agreements contained in this Section 2paragraph (b) above (including Annex A hereto), and the each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may 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.
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell to each of the Initial Purchaser Purchasers, severally and not jointly, and each of the Initial Purchaser Purchasers, severally and not jointly, agrees to purchase from the Company, $110,000,000 the principal amount of Securities set forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.0097% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all of the Securities to be purchased as provided herein.
(b) The Initial Purchaser has Purchasers have advised Merger Corp. the Company that it proposes they propose to offer the Securities for resale upon the terms and subject to the conditions set forth herein and in the Offering Memorandum. The Each Initial Purchaser representsPurchaser, severally and not jointly, represents and warrants to, and agrees with, Merger Corp. and the Company that (i) it is purchasing the Securities pursuant to a private sale exempt from registration under the Securities Act, (ii) it is not acquiring the Securities with a view to any distribution thereof that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction, (iii) it has not solicited offers for, or offered or sold, and will not solicit offers for, or offer or sell, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("Regulation REGULATION D") or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (iiiiv) it has solicited and will solicit offers for the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its their initial offering, only (A) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional BuyersQUALIFIED INSTITUTIONAL BUYERS"), as defined in Rule 144A under the Securities Act ("Rule RULE 144A"), 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 Qualified Institutional Buyer to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and and, in each case, in transactions in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons in reliance on Regulation S under the Securities Act ("Regulation S").S.
(c) In connection with It is understood and acknowledged that upon original issuance thereof, and until such time as the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) The Securities have not been registered same is no longer required 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 pursuant to an exemption from, or in transactions not subject to, the registration applicable requirements of the Act, (1) each of the Securities Act.
(iiand each security issued in exchange therefor or in substitution thereof) The Initial Purchaser has offered and sold issued pursuant to Rule 144A shall bear the Securitiesfollowing private placement legend on the face thereof: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, and will offer and sell the SecuritiesAS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) as part of its distribution at any time and TO THE COMPANY, (B) otherwise until 40 days after the later of the commencement of the offering of the Securities and the Closing DatePURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, only in accordance 15 15 with Regulation (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S or Rule 144A or any other available exemption from registration under the Securities Act.
UNDER THE SECURITIES ACT, (iiiE) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (the "Securities Act"TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), and may not be offered 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 time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Initial Purchaser acknowledges and agrees that the Company and, for purposes of the opinions to be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e2), counsel for the Company and for the Initial Purchaser(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, respectivelyOR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, may rely upon the accuracy of the representations and warranties of the Initial Purchaser and its compliance with its agreements contained in this Section 2IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SECURITIES, and the Initial Purchaser hereby consents to such relianceFOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."; and
Appears in 1 contract
Purchase and Resale of the Securities. (a) On the basis of the representations, warranties and agreements contained herein, set forth herein and subject to the terms and conditions set forth herein and consummation of the Merger, Merger Corp. agrees to cause the Company to, and upon becoming a party to this Agreement on the 14 14 Closing Dateherein, the Company agrees to issue and sell the Securities to the several Initial Purchasers as provided in this Agreement, and each Initial Purchaser agrees, severally and the Initial Purchaser agrees not jointly, to purchase from the Company, $110,000,000 the respective principal amount of Securities set forth opposite such Initial Purchaser’s name in Schedule 1 hereto at a purchase price equal to 97.0098.25% of the principal amount thereofthereof plus accrued interest, if any, from June 9, 2021 to the Closing Date. The Company shall will not be obligated to deliver any of the Securities Securities, except upon payment for all of the Securities to be purchased as provided herein.
(ba) The Company understands that the Initial Purchaser has advised Merger Corp. that it proposes Purchasers intend to offer the Securities for resale upon on the terms and subject to the conditions set forth herein and in the Offering MemorandumTime of Sale Information. The Each Initial Purchaser Purchaser, severally and not jointly, represents, warrants to, and agrees with, Merger Corp. and the Company that that:
(i) it is purchasing a qualified institutional buyer within the meaning of Rule 144A under the Securities pursuant to Act (a private sale exempt from registration “QIB”) and an accredited investor within the meaning of Rule 501(a) 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, the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act ("“Regulation D"”) or in any manner involving a public offering within the meaning of Section 4(24(a)(2) of the Securities Act and Act; and
(iii) it has not solicited offers for, or offered or sold, and will not solicit offers for for, or offer or sell, the Securities only from, and has offered or sold and will offer, sell or deliver the Securities, as part of its offering, only their initial offering except:
(A1) within the United States to persons whom it reasonably believes to be qualified institutional buyers ("Qualified Institutional Buyers"), as defined QIBs in transactions pursuant to Rule 144A under the Securities Act ("“Rule 144A"), 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 ”) and in connection with each such account sale, it has taken or will take reasonable steps to ensure that the purchaser of the Securities is a Qualified Institutional Buyer to whom notice has been given aware that such sale or delivery is being made in reliance on Rule 144A and in each case, in transactions 144A; or
(2) in accordance with Rule 144A and (B) outside the United States to persons other than U.S. persons restrictions set forth in reliance on Regulation S under the Securities Act ("Regulation S")Annex C hereto.
(cb) In connection with the offer and sale of Securities in reliance on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) 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 pursuant to an exemption from, or in transactions not subject to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold 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 of the Securities and the Closing Date, only in accordance 15 15 with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates or any other person acting on its behalf has engaged or will engage in any directed selling efforts with respect to the Securities, and all such persons have complied and will comply with the offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Securities sold in reliance on Regulation S, it will have sent to each distributor, dealer or other person receiving a selling concession, fee or other remuneration that purchase 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, as amended (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 (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering of the Securities and the date of original issuance of the Securities, except in accordance with Regulation S or Rule 144A or any other available exemption from registration under the Securities Act. Terms used above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with its affiliates or with the prior written consent of the Company. Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) The Initial Purchaser represents, warrants and agrees that (i) 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 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; (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 0000 xxx the Public Offers of Securities Regulations 1995 with respect to anything done by it in relation to the 16 16 Securities in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996 or is a person to whom such document may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously with the confirmation of sale by the Initial Purchaser to any purchaser of any of the Securities purchased by the Initial Purchaser from the Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and any amendment or supplement thereto that the Company shall have furnished to such Initial Purchaser prior to the date of such confirmation of sale). In addition to the foregoing, the Each Initial Purchaser acknowledges and agrees that the Company and, for purposes of the “no registration” opinions to be delivered to the Initial Purchaser Purchasers pursuant to Sections 5(d6(g) and (e6(h), Xxxxxx & Xxxxxx L.L.P. as counsel for the Company Company, and Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, as counsel for the Initial PurchaserPurchasers, respectively, may rely upon the accuracy of the representations and warranties of the Initial Purchaser Purchasers, and its compliance by the Initial Purchasers with its agreements their agreements, contained in this Section 2paragraph (b) above (including Annex C hereto), and the each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers may 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.
(d) The Company and the Guarantors acknowledge and agree that each of the Initial Purchasers is acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities and the Guarantees contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representative nor any other Initial Purchaser is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own respective advisors concerning such matters and shall be responsible for making their own respective independent investigation and appraisal of the transactions contemplated hereby, and neither the Representative nor any other Initial Purchaser shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representative (whether acting on behalf of the Initial Purchasers or itself) or any other Initial Purchaser of the Company, the Guarantors, and the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representative or such Initial Purchaser, as the case may be, and shall not be on behalf of the Company or the Guarantors.
Appears in 1 contract
