Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares: (a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller. (b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws). (c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller. (d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement. (e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement. (f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. (g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares. (h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted. (i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Tafazzoli Farshid), Stock Purchase Agreement (Cruz Ralph L), Stock Purchase Agreement (Cruz William R)
Representations and Warranties by Seller. The Seller represents and warrants as of the following to each Purchaser in order to induce Effective Date and during the Purchasers to purchase the SharesTerm of this Agreement that:
(a) Seller has It is a corporation duly organized, validly existing and in good standing under the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. laws of its incorporating jurisdiction.
(b) The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or and the consummation by Seller of the transactions contemplated thereby have been duly authorized by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a validall necessary board, binding and enforceable agreement shareholder or other company action on behalf of and against the Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will is not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise subject to any right of contingent paymentcharter, terminationbylaw, cancellationlien or encumbrance, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement instrument, order or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning body which would prevent the consummation of the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement by Seller does not and will not violate any material statute, ordinance or governmental rule or regulation applicable to Seller, or result in a breach or constitute a default under any indenture or agreement to which it is a Party or by which it or its property may be bound. This Agreement has been duly executed and delivered by Seller, and this Agreement does, and such representation documents and instruments executed as the result thereof shall, constitute legal, valid and binding obligations of Seller enforceable in accordance with their terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies of creditors, as well as to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(c) No further consent, approval, permit, license or authorization of any governmental body is required in connection with the execution, delivery and performance of this Agreement by Seller.
(d) Neither Seller nor any Affiliate of Seller has included an examination of all taxemployed any investment banker, financial and legal aspects of broker or finder in connection with the transactions contemplated by this Agreement nor has it taken any action which would give rise to a valid claim against Buyer for a brokerage commission, finder’s fee or other like payment.
(e) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or, to the knowledge of Seller, threatened against or affecting Seller contesting or affecting as to Seller the execution, delivery, validity, performance or enforceability of this Agreement.
(f) To the best of Seller’s knowledge, no event has occurred and is continuing which would constitute, or upon the passage of time or the giving of notice or both could constitute, an Event of Default as to Seller under this Agreement.
Appears in 2 contracts
Samples: Gas Purchase and Sale Agreement, Gas Purchase and Sale Agreement (Intrepid Technology & Resources, Inc.)
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has the full power and authority to execute conduct its business and deliver this Agreement issue the Special Common Shares and to consummate that the transactions to be consummated Special Common Shares are free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon the Common Stock being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for the allotment of the Special Common Shares to Purchaser hereunder, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
E. Seller has full rightconducted its business in compliance with all applicable federal, power state and authority to transfer local laws, regulations and ordinances.
F. Seller has not received any notice that it is infringing upon the Shares to be sold by Seller to the Purchasers as contemplated hereinresearch, free development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) G. There is (and has not been since its inception) no lawsuitclaim, litigation, action, complaintsuit or proceeding, claimadministrative or judicial, demand, notice, hearing, arbitration, investigation, inquiry pending or any other proceedingthreatened against or affecting Seller, at law or in equity or before any administrative foreign, federal, state, local or enforcement agency other governmental authority, including, without limitation, any claim, proceeding, or body (a "Lawsuit") pending litigation for the purpose of enjoining or threatenedpreventing the consummation of this Agreement, affectingor the transactions contemplated hereby, directly or indirectlyotherwise claiming this Agreement, or any of the Shares transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to be sold by Seller and Seller does not know of Seller's knowledge is there any valid basis for upon which any such Lawsuitclaim, litigation, action, suit or proceeding could be brought or initiated. There Seller is no not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction, injunction or decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-any governmental authority, agency and no replevins, attachments, or instrumentality that restricts executions have been issued or are now in force against Seller. No petition in bankruptcy or receivership has ever been filed by or against Seller.
H. Total Sales for the six-month period ending June 30, 2003 are reported to be $4,236,459. Total Assets reported as of June 30, 2003 are $1,461,234. Total Liabilities reported as of June 30, 2003 are $1,455,736. June 30, 2003 Income Statement and Balance Sheet are attached as Schedule A.
I. The net proceeds from the allotment and sale of the Special Common Shares will be used as business development capital for the Seller to build revenues to $20,000,000 annually and EBITDA to the 5% - 7% range during the next three years. However, in no event shall the net proceeds be used by the Seller for the payment (or loaned to any such person for the payment) of any judgment, or other liability, incurred by any executive officer, officer, director or employee of the Seller, except for any liability owed to such person for services rendered, or if any judgment or other liability is incurred by such person originating from consummating services rendered to the transactions contemplated Seller, or the Seller has indemnified such person from liability. Three-year Revenue and EBITDA projections are attached as Schedule B.
J. Seller has taken all corporate action requirxx xx xxxxxxxxx xxx xxxxution and delivery of this Agreement and the performance of its obligations hereunder, including the issuance and allotment of the Special Common Shares, and this Agreement has been duly executed and delivered by the Seller and constitutes a valid and legally binding obligation of the Seller. When issued to and the first installment is paid for by the Purchaser in accordance with the terms of this Agreement, the Special Common Stock will be duly and validly issued, fully paid and nonassessable, and the issuance of the Special Common Stock will not be subject to any preemptive or similar rights that have not been waived.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary K. The authorized capital stock of the CompanySeller consists of 5,000 shares of Common Stock, par value $.001 per share. The Seller will create, before closing, 1,000 shares of Special Common Stock of the Seller. 1,000 shares of Common Stock and no shares of Special Common Shares have been issued and are outstanding as of the date hereof. All outstanding shares of Common Stock are and will be duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of the Seller or any agreement to which the Seller is a former executive officer and/or director party or by which it is bound and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid dividends with respect to any shares of Common Stock.
L. Seller shall elect one person from Purchaser to its Board of Directors. Initially Purchaser shall be represented by Frank Clark or Bernard Shinder.
M. Upon the signinx xx xxx Xxreemxxx, xxx Xxxxxx's two existing Shareholders shall enter into Executive Management Agreements at their current significant stockholder compensation levels.
N. The Individual Shareholders, who are signatories to this Agreement undertake and agree that they will not exercise their powers, whether as directors, officers or shareholders of the Company (to vote their shares so that:
a. Any rights or as an entity controlled by a former executive officer and/or director and current significant stockholder privileges of the Company)Special Common shares shall be changed, so as to altered or amended, and
b. Any further shares of any class shall be able to evaluate allotted or issued without the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all express consent of the Company's filings with the Securities Exchange Commission Buyer first had and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionobtained.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Bio One Corp), Stock Purchase Agreement (Bio One Corp)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) former officer and director of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended March 31, 2002 2002, June 30, 2002, and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1September 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 and July 16, 2002 earnings releases. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove for the 2002 fourth quarter are currently expected to be materially different more favorable than those previously forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants makes only the following representations and warranties to each Purchaser in order to induce the Purchasers to purchase the SharesBuyer:
(a) 3.2.1 Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California.
3.2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Sellerperform its obligations hereunder. The execution and delivery by Seller of this Agreement Agreement, and the consummation performance by Seller of the transactions contemplated by this Agreement its obligations hereunder, have been duly and validly authorized and approved by Seller, and no organizational or other all necessary action on the part of managers and the members of Seller.
3.2.3 This Agreement is binding upon, and enforceable against, Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally and by general principles of equity (whether in a proceeding at law or in equity).
3.2.4 Neither the execution or delivery of this Agreement by Seller nor the performance by Seller of its obligations under this Agreement will, conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, lease, license, franchise, permit, indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which Seller is a party or is bound or any judgment, order or decree, statute, law, ordinance, rule or regulation applicable to Seller or the property or assets of Seller (including, without limitation, the Property) or the articles of formation or operating agreement of Seller, or any applicable law or order, except for conflicts, breaches or defaults which would not have a material adverse effect on Seller.
3.2.5 No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other person governmental authority or entity instrumentality, domestic or foreign, is necessary required to authorize be obtained or made by or with respect to Seller in connection with the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, hereby.
3.2.6 Seller has good and such representation has included an examination marketable title to all of the Property free and clear of all tax, financial and legal aspects liens of the transactions contemplated by this Agreementany nature.
Appears in 1 contract
Representations and Warranties by Seller. The Seller hereby represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the SharesPurchaser, as follows:
(a) 2.1 Seller has good and marketable title to the Stock, free and clear of all claims, liens, and encumbrances, other than those imposed by this Agreement or securities laws.
2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions to be consummated by Sellercontemplated hereby. The execution and delivery by Seller of this Agreement and has taken all action necessary for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerauthorization, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly duly and validly executed and delivered by Seller and is a validconstitutes the legal and binding obligation of Seller, binding enforceable against Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and enforceable agreement other laws of general application affecting enforcement of creditors’ rights generally, and against Seller(ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) 2.3 The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations pursuant to this Agreement, and the performance and compliance with its terms consummation of the transactions contemplated hereby will not result in a breach by Seller will not (i) conflict with, or result in the breach of, violate the terms or trigger or accelerate any right or obligation (including prepayment penalties)conditions of, or constitute a default by Seller under, any agreement, instrument, decree, law, judgment or an event order to which Seller is a party, to which the properties of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of noticeSeller may be subject, or bothby which Seller may be bound, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interestsliens or encumbrances on the Stock, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality than those that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed created by Purchaser or answered to Seller's satisfactionrestrictions imposed by securities laws.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, "Sale Discussions"), or (ii) the Company has any current plans or intentions to announce another stock buy back plan ("Second Buy Back Plan"), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Connecticut. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that the transactions to be consummated Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") Seller has full rightand for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, power and governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
E. Seller acknowledges that the Assets being transferred per Schedule "A" are owned free and clear of all lienslines and encumbrances, security interestsare not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the Purchase Price paid by Purchaser for Sellers' Assets is fair and adequate consideration.
F. Seller has conducted its business in compliance with all applicable federal, chargesstate and local laws, claimsregulations and ordinances.
G. Seller has not received any notice that it is infringing upon the research, pledgesdevelopment, encumbrances processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery H. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this Agreement and the performance and compliance with its terms by Seller will not transaction without penalty. No employee, director, officer or stockholder (ior any current or former family member thereof) conflict withof Seller, either individually or result in the breach ofany other capacity, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute has a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations claim of any kind upon against the Shares to be sold by Seller, whether tangible and Seller has no obligation with respect to such person or intangibleentity, under (A) except the Seller's organizational right to current salary or constituent instrumentswages, if any (includingaccrued vacation pay, without limitation, articles and reimbursable expenses arising in the ordinary course of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and business. Seller does not know of contribute to or sponsor any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree employee welfare or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companybenefit plans, and as is not subject to any collective bargaining agreement, for employees. I. Seller is a former executive officer and/or director sophisticated investor and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings uncertainties involved with the Securities Exchange Commission and its recent press releases, receipt of restricted common stock. Seller has had an opportunity to ask questions of, discuss the operations of both Xstream and receive answers from, representatives of the Company Purchaser's business with management and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and provided with any requested information. Seller has also reviewed Xstream's filings on the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedSEC EDGAR database located at www.sec.gxx.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Xstream Beverage Group Inc)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "“Lawsuit"”) pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's ’s decision to sell the Shares to be sold by Seller, has reviewed all of the Company's ’s filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's ’s decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's ’s satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, “Sale Discussions”), or (ii) the Company has any current plans or intentions to announce another stock buy back plan (“Second Buy Back Plan”), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's ’s Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed June 30, 2002, as well as the business outlook for the Company for the fiscal year beginning January 1Company’s August 2, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17Proxy Statement and October 15, 20022002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants to Purchaser (which representations and warranties shall survive Closing and the following execution and delivery of the documentation to each Purchaser be executed and delivered at Closing, to the extent provided in order to induce the Purchasers to purchase the SharesSection 10.15) that:
(a) Seller is a corporation duly organized, existing and in good standing under the laws of the State of Delaware and is qualified to do business in, and is in good standing under the laws of, the State of Texas and each jurisdiction in which the failure to so qualify would have a material adverse effect on the Seller. Seller is qualified under applicable laws and regulations to own the Acquired Assets. All prior assignments of interests in any of the Leases or other Acquired Assets that are pending approval by the United States of America, Department of Interior, Bureau of Land Management (the "BLM") are in proper form for approval by the BLM in accordance with the laws, rules, regulations and practices applicable thereto.
(b) Seller has the power full legal power, right and authority to execute and deliver carry on its business as presently conducted, to enter into this Agreement and to consummate perform its obligations under this Agreement.
(c) Subject to Section 6.01(g), the transactions to be consummated by Seller. The execution execution, delivery and delivery performance by Seller of this Agreement and the consummation documentation to be executed and delivered at Closing have been authorized by all necessary action, corporate and otherwise, on the part of Seller. Execution, delivery and performance by Seller of this Agreement do not and execution, delivery and performance by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary documentation to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly be executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller at Closing will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companynot, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement will not, violate or be in conflict with any (i) agreement, instrument, judgment, order, decree, law or regulation applicable to Seller or the Acquired Assets or (ii) any provision of the articles of incorporation or bylaws of Seller.
(d) Subject to laws and equitable principles affecting the rights of creditors, this Agreement is and the documentation to be executed and delivered at Closing will be, upon execution and delivery thereof, legal, valid and binding obligations of Seller enforceable according to their respective terms.
(e) Except as set forth in Schedule 3.01(e), no suit, arbitration, inquiry, proceeding, audit, claim, demand or investigation is pending or, to the knowledge of Seller, threatened that might result in impairment or loss or diminution of the title of Seller to the Acquired Assets or otherwise adversely affect any of the Acquired Assets in any material respect. There are no bankruptcy or reorganization proceedings pending or, to the knowledge of Seller, threatened against Seller or any Affiliate of Seller.
(f) Schedule 1-B sets forth a list of the following contracts, agreements or commitments to which the Acquired Assets are subject or by which Seller is bound with respect to the Acquired assets:
(i) any written contract or agreement with Seller or any Affiliate of Seller relating to the provision of goods or services which will survive the Closing;
(ii) any contract, agreement or commitment that commits Seller and its assigns to aggregate expenditures with respect to the Acquired Assets of more than $100,000 in any calendar year, excluding (x) the Leases and any contracts or agreements creating interests or rights in the Acquired Assets, (y) joint operating agreements, and (z) unitization or pooling agreements;
(iii) any contract, agreement or commitment that commits Seller and its assigns to sell, process, transport or market any Substances excluding (x) any such contract, agreement or commitment which expires within six months or can be terminated by Seller and its assigns upon not more than six months' notice without penalty, (y) joint operating agreements and (z) unitization or pooling agreements;
(iv) any contract, agreement or commitment that restricts Seller and its assigns, as owners of any of the Acquired Assets, from competing with any third party in any geographic region or line of business; and
(v) any contract, agreement or commitment that warrants the volume of production of Substances to be delivered by Seller and its assigns from the Acquired Assets.
(g) To the extent Seller is responsible for payment thereof and otherwise to the knowledge of Seller, all rentals, royalties, shut-in royalties, overriding royalties, taxes and other payments due pursuant to or with respect to the Leases or the production of Substances therefrom or attributable thereto or revenue attributable to such production have been properly paid.
(h) To the knowledge of Seller, the Leases have been drilled, completed, operated, developed and produced in material compliance with all applicable judgments, orders, laws, rules and regulations. Except as set forth in Schedule 3.01(h), (i) all necessary certificates, consents, permits, licenses and other governmental authorizations affecting the Acquired Assets have been obtained and are in force, (ii) there are no outstanding violations of any applicable regulations, rules or orders of the Federal Energy Regulatory Commission, the BLM, or any other regulatory agency with respect to the Acquired Assets, (iii) the production status of each oil, gas, injection or disposal well included in the Acquired Assets (each a "Well") identified in Schedule 1-A as of the Effective Time and, to the best knowledge of Seller, as of the date of execution of this Agreement, is correctly reflected on such Schedule, and (iv) there are no wells included in the Acquired Assets or located on the Leases that (X) Seller is obligated, by applicable judgments, orders, laws, rules, regulations or contract, to currently plug and abandon or (B) are subject to exceptions to a requirement to plug and abandon issued by a governmental authority.
(i) Seller is not obligated, under a take-or-pay or similar arrangement, or by virtue of an election to non-consent or not participate in a past or current operation on the Leases pursuant to applicable operating agreements, to produce Substances, or allow Substances to be produced, without receiving full payment at the time of delivery in an amount that corresponds to the Net Revenue Interest described in Schedule 1-A.
(j) Seller is timely receiving its share of proceeds from the sale of Substances produced from or allocable to the Leases without suspense, counterclaim or set-off. There has been no production of Substances from or allocable to the Leases in excess of the allowable production established pursuant to applicable state or federal law or regulation that would result in a restriction on production of Substances from or allocable to the Leases subsequent to the Effective Time.
(k) Except for Casualty Losses after the date of execution of this Agreement, which are covered by the provisions of Section 5.07, since January 1, 2002 no event has occurred and no condition exists which has, or could reasonably be expected to, materially adversely affected the value of the Acquired Assets or the ability of Purchaser to own, hold, develop and operate the Acquired Assets, except for depletion through normal production changes in rates of production that occur in the ordinary course of operation, depreciation of the Equipment through ordinary wear and tear, and changes in general economic conditions and product pricing generally affecting the oil and gas industry
(l) Seller has incurred no liability for brokers' or finders' fees related to the transactions contemplated by this Agreement for which Purchaser shall be liable.
(m) Except as set forth in Schedule 3.01(m), there are no outstanding authorities for expenditures or any oral or written commitments or proposals to conduct operations on the Leases which are required to be approved by non-operators under the terms of the applicable joint operating agreement.
(n) Except as set forth in Schedule 3.01(n), as of the Effective Time, no portion of the Acquired Assets is over produced, under produced, or otherwise subject to an imbalance or make-up obligation (collectively, "Imbalances") with respect to Substances produced from or allocated to the Acquired Assets, regardless of whether such representation Imbalances arise at the platform, wellhead, pipeline, gathering system or other level and regardless of whether such Imbalances arise under Contract or otherwise.
(o) No consents or approvals of any third persons are required in connection with the transfer of the Acquired Assets from Seller to Purchaser other than the approval of the BLM and the consents listed in Schedule 3.01(o). Except as set forth in Schedule 3.01(o) there are no preference rights applicable to the sale of the Acquired Assets by Seller to Purchaser pursuant to this Agreement.
(p) Seller has included an examination obtained all permits, licenses and other authorizations (collectively, "Environmental Permits") which are required under any law, ordinance, statute, code, rule, regulation, agreement, judgment, order, or decree of any federal, state or local governmental authority, applicable to the Acquired Assets, relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste into the environment, including ambient air, surface water, ground water or land or soil (collectively, "Environmental Laws"), and all taxof such Environmental Permits are in full force and effect and all fees and charges relating thereto have been paid. Seller is in compliance with all Environmental Laws and Environmental Permits applicable to the Acquired Assets, financial and legal aspects the Acquired Assets are not subject to any material unfulfilled remedial obligations pursuant to Environmental Laws. Seller has not received notice of any violation or alleged violation that is continuing (or of any fact or circumstance which with notice or the passage of time or both would constitute a violation) of any Environmental Laws or Environmental Permits relating to the Acquired Assets or any investigation relating thereto.
(q) Seller is not a nonresident alien of the United States.
(r) Except as set forth on the Disclosure Schedule, (i) Seller owns or has the right to use without any limitations or restrictions (including without limitation restrictions related to transfers to, or use by, any individual, corporation, limited liability company, business trust, association, company, partnership, joint venture, governmental authority or other entity (each, a "Person")), the Seismic Data; (ii) the consummation of the transactions contemplated by this AgreementAgreement will not alter or impair any such rights or breach any agreements with third-party vendors or require payments of any additional sums to such Persons; and (iii) the manner in which Seller has actually used or copied such Seismic Data does not and has not infringed on the rights of any Person.
(s) All books, records and files of Seller pertaining to the Acquired Assets, to Seller's knowledge, fairly and accurately reflect the ownership, use, enjoyment and operation by Seller of its assets.
(t) The transfer of the Acquired Assets to the Purchaser is not being made with the actual intent to hinder, delay or defraud any creditor of Seller. The Purchase Price constitutes reasonably equivalent value in exchange for the sale of the Acquired Assets as such value has been determined on or prior to the Closing, will be determined by an independent, third party appraiser, selected by Seller prior to the Closing and Seller is not insolvent now and will not become insolvent on the Closing Date.
(u) Seller has delivered to Purchaser a copy of the report prepared by Garb, Grubb & Harris dated December 31, 2001. To the knowledge of Seller, the xxxxxal information furnished by Seller to Garb, Grubb & Harris for purposes of such report (including, without xxxxxatixx, xxoduction, volumes, decline curves, sales prices for production, reserve reports, contractual pricing provisions under oil or gas sales or marketing contracts under hedging arrangements, costs of operations and development, lease operating expenses, and working interest and net revenue information relating to Seller's ownership interests in properties) was true and correct in all material respects on the date of such reserve report; provided, however (i) the reserves included in such report are estimates only and should not be construed as exact quantities, (ii) such reserves may or may not be recovered and, if recovered, the revenues therefrom and the costs related thereto could be more or less than the estimated amounts, (iii) the sales rates, prices received for the reserves, and costs incurred in recovering such reserves may vary from assumptions included in such report due to governmental policies and uncertainties of supply and demand, and (iv) estimates of such reserves may increase or decrease as a result of future operations.
(v) Seller has no knowledge of the breach of any representation, warranty, covenant or agreement hereunder by Purchaser or of the failure of Purchaser to perform an obligation hereunder, other than such as have been disclosed in writing to Purchaser.
Appears in 1 contract
Representations and Warranties by Seller. The 5.1. Seller represents warrants and warrants the following represent to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the placeStateNevada. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the transactions to be consummated Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. Seller will provide Purchaser prior to closing copies of director and shareholder consents to enter into this Agreement Agreement. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
(b) Seller has full right1. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, power including without limitation all amendments, modifications, and supplements, whether written or oral and for performing Sellers' obligations under the Purchase Documents have been obtained. No consent of any court, governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
D. The Assets being transferred per Schedule A are owned free and clear of all liensliens and encumbrances, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests are not encumbered by any lien or the subject matter of any other party whatsoever known or anticipated litigation. Seller has satisfied all conditions required of Seller in connection with the acquisition of the assets from the original owner and Seller has recorded title to the assets with the United State Patent and Trademark Office. Copies of all registrations, whether in the placecountry-regionUnited States or with any nature (other than restrictions imposed foreign jurisdiction are attached hereto. Seller further acknowledges and agrees that the Purchase Price paid by federal or state securities laws)Purchaser for Seller’s Assets is fair and adequate consideration.
(c) The execution and delivery of this Agreement and the performance and E. Seller has conducted its business in compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or nonall applicable placecountry-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or regionU.S. federal, state, and local laws, regulations and ordinances and any laws or regulations of any foreign governmental jurisdiction.
F. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
G. Seller is not a party to any written or quasi-governmental authorityoral employment, agency or instrumentality commission agreement with any of its employees that restricts cannot be terminated upon the closing date of their transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, the Business or the Assets and Seller from consummating the transactions contemplated by this Agreementhas no obligation with respect to such person or entity. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees.
(e) 2. The Seller has sufficient knowledge completed its due diligence on the Purchaser and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating uncertainties involved with the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all receipt of the Company's filings with the Securities Exchange Commission and its recent press releases, Purchaser’s Common Stock. Seller has had an opportunity to ask questions ofdiscuss the operations of Purchaser’s s business, financial condition and receive answers from, representatives affairs with management and has been provided with any requested information. The Seller understands that there is a substantial risk of loss with respect to their investment in the Common Stock of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionPurchaser.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Homeland Security Network, Inc.)
Representations and Warranties by Seller. The Seller represents and warrants to Buyers as of the following to each Purchaser in order to induce date hereof and as of the Purchasers to purchase the SharesClosing Date as follows:
(a) Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and has the requisite power and authority to execute and deliver enter into this Agreement and any and all other agreements, instruments, certificates and documents that are expressly required to be executed and/or delivered by the Parties hereby (the “Transaction Documents”), and to consummate the transactions contemplated by the Transaction Documents. The execution, delivery and performance by Seller of each Transaction Document to be consummated which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary company action on the part of Seller. The Each Transaction Document to which Seller is a party is, or upon its execution and delivery will be, a valid and binding obligation of Seller, enforceable against it in accordance with the terms thereof except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles (the “Bankruptcy and Equity Exceptions”).
(b) Seller is the sole beneficial and record holder of the Interests, and holds title to the Interests free and clear of any lien (statutory or otherwise), mortgage, pledge, charge, security interest, hypothecation, community property interest, equitable interest, servitude, option, right (including rights of first refusal), restriction (including restrictions on voting, transfer or other attribute of ownership), lease, license, other rights of occupancy, adverse claim, reversion, reverter, preferential arrangement or any other encumbrance in respect of the Interests (each, a “Lien”).
(c) Neither the execution, delivery or performance by Seller of this Agreement and or any Transaction Document to which Seller is a party, nor the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerhereby or thereby, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement nor compliance by Seller or the consummation by Seller with any of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal provisions hereof or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller thereof will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) violate any law, rulestatute, regulation, policy, ruling rule or other interpretation, guideline, circular, judgment, order, decree regulation or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunctioninjunction or decree (“Law”), decree in each case applicable to Seller or other similar command Seller’s assets or directive of properties, or give any court or federal, state, local or foreign governmental or quasi-governmental regulatory agency, commission, bureau, authority, agency court or instrumentality that restricts arbitration tribunal (“Authority”) or other Person (as defined below) the right to challenge any of the transaction contemplated hereby, (ii) with or without the passage of time or the giving of notice or both, result in the breach of, or constitute a default or require any consent under, or result in the creation of any Lien upon the Interests pursuant to any material contract to which such Seller from consummating is a party or by which such Seller or the transactions contemplated by this Agreement.
Interests may be bound or affected, in each case, or (eiii) Seller has sufficient knowledge or violate any provision of the certificate of formation, bylaws and experience with the Company includingoperating agreement, without limitation(or other comparable charter documents), as a co-founder applicable, as each may be amended or restated from time to time (or as an entity controlled by a co-founderthe “Organizational Documents”) of TradeStation SecuritiesSeller or any standing resolution adopted by the managers or members of Seller. “Person” means any individual, Inc.corporation, a Florida corporation that is currently the primary operating subsidiary of the Companylimited liability company, and as a former executive officer and/or director and current significant stockholder of the Company (partnership, joint venture, association, trust, unincorporated organization, governmental entity or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementany other entity.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Gramercy Property Trust Inc.)
Representations and Warranties by Seller. The Subject to the Schedules and other agreements in connection with the transactions contemplated herein or as reflected in the financial information provided by Seller to Purchaser, Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas of December 31, 2000 (except as otherwise expressly provided), as set forth below:
(a) 5.1. Organization, Existence and Authority of Seller and IPM. Seller and IPM each is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. Seller has the all corporate power and authority to execute execute, deliver and deliver perform this Agreement and the Transaction Documents to be executed and delivered by Seller pursuant hereto and to consummate the transactions contemplated hereby and thereby, subject to be consummated the approval and adoption of those transactions by Sellerthe Special Committee and the shareholders of Venturian. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or does not, and the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by hereby will not, violate any provisions of Seller's or IPM's Articles of Incorporation or By-Laws or, to Seller's knowledge, of any law or regulation applicable to Seller and or IPM or of any agreement, mortgage, license, lease, arrangement, instrument, order, arbitration award, judgment or decree to which Seller or IPM is a valid, binding and enforceable agreement of and against Seller.
(b) party or by which Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, IPM is bound or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any lienslien, chargescharge, rights, claims, interests, options security interest or other encumbrances, restrictions or limitations of any kind upon encumbrance on the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder Assets (or the assets of IPM) other than as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of except that many or all tax, financial and legal aspects of the transactions contemplated contracts, agreements and Performance Obligations to be assigned by Seller to Purchaser and assumed by Purchaser pursuant to this AgreementAgreement are not so assignable and/or assumable without the consent of the other party or parties thereto.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants to the following to Purchaser on the date of the Original Agreement and on each Purchaser in order to induce the Purchasers to purchase the Sharesday on which there is a Purchase:
(a1) The Seller has is a corporation duly incorporated and validly existing under the power Laws of its governing jurisdiction, and authority is duly qualified and licensed to execute carry on its business in all jurisdictions in which the nature of any business conducted by it or the character of any property and deliver this Agreement assets owned or leased by it requires such qualification, except to the extent that failure to have any such qualification or license would not have Material Adverse Effect.
(2) The execution, delivery and to consummate performance by the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of Related Documents to which it is a party (a) are within the transactions contemplated by this Agreement Seller’s corporate powers, (b) have been duly authorized by all necessary corporate action, and (c) do not contravene any of the following: (i) the Seller’s constating documents or by-laws; (ii) in any material respect, any Law applicable to the Seller including any regulation, order, tariff or ruling of the CRTC; (iii) any material contractual restriction binding on or affecting the Seller or its property; or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting, in any material respect, the Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller its property or the consummation by Seller Receivables Pool; and (d) do not result in or require the creation of any Adverse Claim upon or with respect to the transactions Receivables Pool (other than the Seller’s Retained Interest hereunder). No transaction contemplated by this AgreementAgreement requires compliance with any bulk sales act or similar Law. This Agreement and each Related Document to which the Seller is a party has been properly and validly duly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against the Seller.
(b3) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and or any Related Document to which the performance and compliance with its terms by Seller will is a party other than those which have been obtained or completed except where such lack of authorization, approval, action, notice or filing could not materially adversely affect (i) conflict with, the value or result in collectibility of the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewalReceivables Pool, or (ii) result the Purchaser’s interests hereunder. For greater certainty, any authorization, approval, action, notice or filing required from or with the CRTC or the Canada Revenue Agency is deemed to be material.
(4) This Agreement and each Related Document to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms subject to (a) applicable bankruptcy, reorganization, winding-up, insolvency, moratorium and other Laws of general application limiting the enforcement of creditors rights, (b) the fact that the granting of equitable remedies such as specific performance and injunction is within the discretion of a court of competent jurisdiction, and (c) general principles of equity.
(5) There is no pending or, to the Seller’s knowledge, threatened, action or proceeding affecting the Seller or any of the Seller’s assets before any Governmental Authority which, if determined adversely, would have a Material Adverse Effect.
(6) Immediately prior to each Purchase, the Seller is the legal and beneficial owner of the Pool Receivables and Related Rights free and clear of any Adverse Claim. Upon such Purchase, the Seller shall sell, transfer, assign and convey to the Purchaser a valid and perfected undivided ownership interest to the extent of the Purchaser’s Ownership Interest in each Pool Receivable and Related Rights.
(7) No effective financing statement or other instrument similar in effect perfecting an Adverse Claim in any Pool Receivable or Related Rights is on file in any recording office registered or filed under the PPSA of any province or territory of Canada against the Seller, except in respect of which a waiver, release or acknowledgement in writing and in form and substance acceptable to the Purchaser has been obtained.
(8) Each Servicer Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or any such Affiliate) and all other information, historical performance data, exhibits, financial statements, documents, materials relating to collection practices and procedures, books, records or reports furnished at any time by or on behalf of the Seller to the Agent or the Purchaser in connection with this Agreement are accurate in all material respects as of their respective dates or as of the date so furnished and do not or shall not omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading.
(9) The chief executive office of the Seller is located in a Province of Canada where all actions necessary to perfect the Purchaser’s Ownership Interest in the creation Receivables Pool has been taken and completed and the offices where the Seller keeps its Records concerning the Pool Receivables and Related Security are located at the address or addresses set forth in Schedule C.
(10) Neither of the Seller nor any liensOriginator is in default and, chargesupon completion of each Purchase hereunder, rightsshall not be in default, claims, interests, options under any agreement or other encumbrancesdocument or instruments to which it is a party or by which it or any of its properties or assets is bound or affected where such default would have a Material Adverse Effect, restrictions and, for greater certainty, this includes any indenture or limitations instrument evidencing or under which the Seller or an Originator has at any time outstanding indebtedness for borrowed money in excess of any kind upon 5.0% of the Shares aggregate principal amount of all outstanding indebtedness for borrowed money of the Seller on a consolidated basis.
(11) The Seller is not a non-resident of Canada within the meaning of the Income Tax Act (Canada).
(12) No Insolvency Event has occurred with respect to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational . The Seller has entered into this Agreement and the Related Documents to which it is a party for the purpose of selling, transferring, assigning and conveying all of its right, title and interest in, to and under the Purchaser’s Ownership Interest to the Purchaser and receiving from the Purchaser the consideration therefor specified in this Agreement, and not for the purpose of defeating, hindering, delaying, defrauding or constituent instruments, if oppressing the rights and claims of creditors or others against the Seller or for any (including, without limitation, articles other purpose relating in any way to the claims of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of creditors or others against the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d13) There is Since the date of the last audited financial statements of the Seller delivered pursuant to Section , there has been no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry change in the consolidated financial position or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (the consolidated results of the operations of the Seller that would have a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this AgreementMaterial Adverse Effect.
(e14) All Records reasonably necessary to originate, identify, administer and collect the Pool Receivables and Related Security in accordance with the terms hereof and the Credit and Collection Policy are owned by the Seller or if not owned by the Seller, the Seller has sufficient knowledge all necessary rights of access to such Records to so originate, identify, administer and experience with collect the Company including, without limitation, Pool Receivables and Related Security as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementherein.
(f15) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all Each of the Company's filings with Pool Receivables and the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionReceivables Pool is identifiable.
(g16) Seller has No Event of Termination (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 than as set forth out in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events Section ) has occurred and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedcontinuing.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares:
(a) Seller represents, warrants, and covenants to Purchaser that:
(i) Seller (1) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (2) has the full power and authority to convey the Property and to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution all documents contemplated hereby, (3) has taken all actions and delivery by Seller of this Agreement obtained all consents and approvals required for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(eii) This Agreement constitutes a valid and binding obligation of Seller has sufficient knowledge and experience is enforceable against Seller in accordance with the Company includingits terms except as such enforcement may be limited by applicable bankruptcy, without limitationinsolvency, as a co-founder (reorganization, moratorium or as an entity controlled by a co-founder) other laws of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary general application relating to or affecting enforcement of the Companycreditors' rights generally, and as a former executive officer and/or director the application of equitable principles in any action, legal or equitable. The execution of this Agreement, the delivery of all required documents, the Seller's performance of this Agreement and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated hereby have been duly authorized by this Agreementall requisite action on the part of the Seller.
(fiii) Neither the execution and delivery of, nor the performance under, this Agreement or any other document executed and delivered by the Seller (and/or both contemporaneously herewith or at the Closing) in connection with this transaction is precluded by, will conflict with, result in a breach of or violate, any provision of (1) any existing Federal, state, local or other governmental or quasi-governmental law, statute, ordinance, restriction, rule or regulation, or (2) any judgment, order decree, writ or injunction of any court or governmental department, commission, board, bureau, agency or instrumentality applicable to Seller.
(iv) Schedule 5.1(iv) sets forth all of the leases (collectively "Leases") entered into with respect to the Property, together with all security deposits held by or on behalf of Seller pursuant to any of the Leases. All Leases are in full force and effect in accordance with their respective terms. To the Seller's officersknowledge, directorsno tenant under a Lease has asserted any claim or default or offset against the Seller with respect thereto.
(v) There are no brokerage or leasing commissions which are due and unpaid with respect to any of the Leases.
(vi) All service, executivesmanagement or maintenance contracts (collectively "Contracts") relating to or affecting the Property are set forth in Schedule 5.1(vi) annexed hereto and made a part hereof and true and correct copies of all Contracts, partners and/or principals who including all agreements, amendments, and other documents relating thereto, have been made available to the Purchaser for inspection. All Contracts are acting on in full force and effect in accordance with their respective terms. To the Seller's behalfknowledge, no party to any of the Contracts has asserted any claim or default or offset against the Seller with respect thereto.
(vii) is fully familiar with all facts and circumstances attendant There are no actions, proceedings or other litigation pending or, to Seller's decision knowledge, threatened, with respect to sell the Shares to be sold by Property, the use or operation thereof or the Seller, has reviewed all of as owner thereof, nor are there any outstanding or unpaid judgments against the Company's filings with Seller or affecting the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionProperty.
(gviii) Seller has (is acquiring the Shares for investment purposes only and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as not with a view to be capable of evaluating, alone the resale or together, the merits and risks of selling his or its Sharesdistribution thereof.
(hix) Seller has reviewedTo Seller's knowledge, among other things, there are no pending or threatened condemnation proceedings affecting the Company's Annual Report of Form 10-K Property.
(and its audited financial statements included thereinb) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 Except as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. HoweverSection 5.1(a), Seller specifically understands and agrees that has not made any warranty or representation, express or implied, written or oral, concerning the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future eventsProperty or any uses to which the Property may or may not be put including, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in factbut not limited to, the actual operating results of the Company may prove to be materially different than those forecasted.following:
(i) Seller has been represented by such businessthe condition of title to the Property;
(ii) the nature, legal physical condition or other aspect of the Property;
(iii) the income or expenses generated, paid or incurred in connection with the Property;
(iv) the accuracy of any statements, calculations or conditions stated or set forth in Seller's books and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult records concerning the consummation Property;
(v) the suitability of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects Property for any intended use or development;
(vi) the dimensions of the transactions contemplated by this AgreementProperty or the accuracy of any square footage, sketches or abstracts, revenue or expense projections related to the Property;
(vii) the ability of Purchaser to obtain any and all necessary governmental approvals or permits for Purchaser's intended use and development of the Property; or
(viii) the existence of Hazardous Materials (as defined in Section 5.3(b)) in, on, about, under, or affecting the Property.
Appears in 1 contract
Representations and Warranties by Seller. The Effective as of the Closing Date, Seller hereby represents and warrants to Buyer, which representations and warranties shall be accurate and true in all material respects, and acknowledges that Buyer is relying upon such representations and warranties in purchasing the following to each Purchaser in order to induce the Purchasers to purchase the SharesProperty, as follows:
(a) A. Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Seller has the full power and authority to execute and deliver this Agreement and all of Seller’s closing documents, to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of engage in the transactions contemplated by this Agreement. , and to perform and observe all of Seller’s obligations under this Agreement.
X. Xxxxxx and the persons signing this Agreement for Seller have the authority and power to sign this Agreement, to perform all of Seller’s obligations under this Agreement and to sign and deliver all of the documents required to be signed and delivered by Seller without the consent or approval of any other person.
C. This Agreement has been properly and validly duly executed and delivered by Seller and is a validlegal, valid and binding instrument, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and enforceable agreement (ii) general principles of and against Sellerequity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) X. Xxxxxx is not a “foreign person” and is not subject to withholding within the meaning of Section 1445 of the Internal Revenue Code. Seller will execute and deliver to Buyer through and at the Close of Xxxxxx a non-foreign affidavit in form acceptable to Buyer.
E. Other than the Contracts, Seller has full rightnot entered into any contracts, power and authority subcontracts or agreements affecting the Property which will be binding upon Buyer after the Closing.
X. Xxxxxx has not granted to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature person or entity (other than restrictions imposed by federal Buyer under the Lease) any lease, license, or state securities laws)occupancy right with respect to the Property.
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by G. Seller will has not (i) conflict withadopted or entered into a plan of, liquidation, dissolution, merger, consolidation or other reorganization; or, or result filed a petition in bankruptcy under any provisions of federal, state or provincial bankruptcy or insolvency law, or consented to the filing of any bankruptcy petition against it under any similar law.
X. Xxxxxx is not engaging in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affectingtransactions contemplated hereunder, directly or indirectly, the Shares in violation of any laws relating to drug trafficking, money laundering or predicate crimes to money laundering or drug trafficking. The Property to be sold transferred to Buyer hereunder has not been derived from any unlawful activity with the result that the investment of direct or indirect equity owners in Seller is prohibited by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree laws or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by hereunder or this AgreementAgreement is or will be in violation of laws.
(e) I. Seller is not in violation of, has sufficient knowledge been charged with or is under indictment for the violation of, or has pled guilty to or been found guilty of the violation of, any laws relating to anti-corruption, anti-bribery, terrorism, money laundering, drug-trafficking or the Uniting and experience with the Company includingStrengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, without limitationPublic Law 107-56, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companyamended, and as a former executive officer and/or director Executive Order No. 13224 (Blocking Property and current significant stockholder of Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the Company “Executive Order”) (or as an entity controlled by a former executive officer and/or director collectively, the “Anti-Bribery, Anti-Money Laundering and current significant stockholder of the CompanyAnti-Terrorism Laws”), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or X. Xxxxxx is not acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, or are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time.
K. Neither Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold nor any person controlling or controlled by Seller, has reviewed all is a country, territory, individual or entity named on a Government List, and the monies used in connection with this Agreement and amounts committed with respect thereto, were not and are not derived from any activities that contravene any of the Company's filings with the Securities Exchange Commission Anti-Bribery, Anti-Money Laundering and its recent press releasesAnti-Terrorism Laws or any other applicable anti-money laundering or anti-bribery Laws and regulations (including funds being derived from any person, has had an opportunity to ask questions ofentity, and receive answers from, representatives country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the Company United States Code, Section 1956(c)(7)). All of the representations and warranties set forth herein shall survive the Closing and the delivery of the grant deed for a period of one (1) year. No claim for a breach of any representation or warranty shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was known to Buyer or Buyer is deemed to know, including the existence of hazardous materials within the boundaries of the Property or within the improvements thereon; provided, however, that nothing herein shall relieve Buyer of any of its obligations under the Lease. As used in this provision, “deemed to know” has available the following meaning: Buyer shall be deemed to him know of the existence of a fact or it such information related circumstance to the Company and its businessextent that such fact or circumstance would be known by an occupant of the Property. Notwithstanding anything herein to the contrary, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as shall not be deemed to be capable in breach of evaluating, alone any representation or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as warranty set forth in herein to the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees extent that such breach is caused by or the business outlook represents only result of a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedcondition caused by Buyer or any affiliate.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Lease Agreement (Faraday Future Intelligent Electric Inc.)
