Representations and Warranties of Executive. Executive hereby represents and warrants to the Company that: (a) The Common Units to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units shall not be disposed of in contravention of the Securities Act or any applicable state securities laws. (b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Units. (c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act. (d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available. (e) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested. (f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity. (g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder. (h) Executive is a United States citizen and a resident of the State of Kansas. (i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 7 contracts
Samples: Executive Purchase and Vesting Agreement (Coffeyville Resources, Inc.), Executive Purchase and Vesting Agreement (Coffeyville Resources, Inc.), Executive Purchase and Vesting Agreement (Coffeyville Resources, Inc.)
Representations and Warranties of Executive. In connection with the Executive's Initial Capital Contribution and the issuance of the Executive hereby Securities hereunder, the Executive Purchaser represents and warrants to each of the Company LLC and the Corporation that:
(ai) The Common Units Executive Securities to be acquired by the Executive Purchaser pursuant to this Agreement shall be acquired for Executivethe Executive Purchaser's own account and not with a view to, or the intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the Company and/or its SubsidiariesCorporation, and the Executive Purchaser is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(ciii) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive Purchaser is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Transaction Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company Corporation and its Subsidiaries this investment opportunity as he has requested.
(fv) This Each of this Agreement, the LLC Agreement and that certain Employment Agreement, dated the Transaction Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the therewith to which Executive (the "Employment Agreement")Purchaser is a party, constitute the legal, valid and binding obligations of Executivethe Executive Purchaser, enforceable against the Executive Purchaser in accordance with their its terms; Executive is ready, subject willing and able as of the date hereof to commence and to continue employment with the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium Corporation in the office to which Executive was appointed by the Board; and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement such agreements by Executive, and Executive's employment with the Company, Corporation and the execution activities (including recruiting activities) on behalf of the Company's contemplated business plans Corporation, do not and shall will not conflict with, violate or cause a material breach of any agreement, contract or instrument (including, without limitation, any noncompete agreement or restrictive covenant instrument) to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject, . (c) Acknowledgment of At-Will Employment. As an inducement to the LLC and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity Corporation to consult with independent legal counsel regarding his rights and obligations under enter into this Agreement, fully understands and as a condition thereto, the terms Executive acknowledges and conditions contained herein agrees that no agreement or arrangement between the Executive and intends the Corporation or the LLC (including, without limitation, the issuance of the Executive Securities to the Executive and the execution and delivery of this Agreement) shall entitle Executive to remain in the employment of the Corporation and its Subsidiaries or affect the right of the Corporation or its Subsidiaries to terminate Executive's employment at any time or for such terms to be binding and enforceable upon Executive. SECTION 2any reason.
Appears in 4 contracts
Samples: Executive Purchase Agreement (Choice One Communications Inc), Executive Purchase Agreement (Choice One Communications Inc), Executive Purchase Agreement (Choice One Communications Inc)
Representations and Warranties of Executive. Executive hereby represents and warrants to the Company thatCorporation as follows:
(ai) The Common Units to be acquired by Executive pursuant to this Agreement shall be represents that the Shares are being acquired for Executive's own account a personal account, for investment purposes only, and not with a view toto the distribution, resale or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units shall not be disposed of in contravention of the Securities Act or any applicable state securities lawsother disposition thereof.
(bii) Executive acknowledges that the Corporation is a management employee of issuing the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) Shares without registering such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered Shares under the Securities Act of 1933, as amended (the “Securities Act”), or any applicable state the securities laws andof any state, therefore, cannot on the basis of certain exemptions from such registration requirements.
(iii) Executive recognizes that the Shares must be sold held indefinitely unless they are subsequently registered or qualified under the Securities Act and such applicable federal or state securities laws or an exemption from such registration or qualification is available, and further recognizes that the Corporation is under no obligation to register or qualify such Shares or to comply with any exemption from such registration or qualification.
(eiv) Executive has had an opportunity further agrees in no event to ask questions and receive answers concerning the terms and conditions make any disposition of all or any part of the offering of the Common Units issued hereunder Shares unless and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
until (i) Executive has shall have notified the Corporation of the proposed disposition; (ii) Executive shall have received an opinion of counsel to the effect that such disposition will not require the registration or qualification of the Shares under applicable securities laws; and (iii) such opinion of counsel shall have been given concurred in by the Corporation’s counsel and the Corporation shall have advised Executive of such concurrence. Executive acknowledges that any certificates representing the Restricted Shares may bear legends that are deemed appropriate by the Corporation’s counsel regarding the restrictions on disposition of the Restricted Shares.
(v) Executive acknowledges receipt of all such information as Executive deems necessary and appropriate to enable Executive to evaluate the financial risk inherent in acquiring the Shares and acknowledges receipt of satisfactory and complete information covering the business and financial condition of the Corporation, including the opportunity to consult obtain information regarding the Corporation’s financial status, in response to all inquiries in respect thereof. Executive acknowledges and represents that (A) Executive has a preexisting personal or business relationship with independent legal counsel regarding his rights the Corporation and obligations under with certain of the Corporation’s officers and directors, and (8) Executive has the business and financial experience necessary to evaluate this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2investment.
Appears in 2 contracts
Samples: Employment Agreement (Athenex, Inc.), Employment Agreement (Athenex, Inc.)
Representations and Warranties of Executive. In connection with the purchase and issuance of the Executive hereby Securities hereunder, Executive represents and warrants to the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein herein, in the Securityholders Agreement, and in the LLC Agreement Performance Vesting Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, the Registration Agreement, the Performance Vesting Agreement, the Joinder Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with by the Company, Company and the execution of the Company's contemplated business plans its Subsidiaries do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 2 contracts
Samples: Executive Securities Agreement (Comple Tel LLC), Executive Securities Agreement (Comple Tel LLC)
Representations and Warranties of Executive. Executive hereby represents and warrants to the Company thatEmployer as follows:
(a) The Common Units to be acquired by Executive pursuant to this Agreement shall be represents that the Restricted Shares are being acquired for Executive's own account a personal account, for investment purposes only, and not with a view toto the distribution, resale or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units shall not be disposed of in contravention of the Securities Act or any applicable state securities lawsother disposition thereof.
(b) Executive acknowledges that the Employer is a management employee issuing the Restricted Shares without registering such Shares under the Securities Act of 1933, as amended (the Company and/or its Subsidiaries“Securities Act”), is sophisticated in financial matters and is able to evaluate or the risks and benefits securities laws of any state, on the investment in the Common Unitsbasis of certain exemptions from such registration requirements.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under recognizes that the Securities Act.
Restricted Shares (dincluding the Vested Shares) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not must be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold held indefinitely unless they are subsequently registered or qualified under the Securities Act and such applicable federal or state securities laws or an exemption from such registration or qualification is available, and further recognizes that the Employer is under no obligation to register or qualify such Restricted Shares or to comply with any exemption from such registration or qualification.
(d) Executive further agrees in no event to make any disposition of all or any part of the Vested Shares unless and until (i) Executive shall have notified the Employer of the proposed disposition; (ii) Executive shall have received an opinion of counsel to the effect that such disposition will not require the registration or qualification of the Vested Shares under applicable securities laws; and (iii) such opinion of counsel shall have been concurred in by the Employer’s counsel and the Employer shall have advised Executive of such concurrence. Executive acknowledges that any certificates representing the Restricted Shares may bear legends that arc deemed appropriate by Employer’s counsel regarding the restrictions on disposition of the Restricted Shares.
(e) Executive has had an acknowledges receipt of all such information as Executive deems necessary and appropriate to enable Executive to evaluate the financial risk inherent in acquiring the Restricted Shares and acknowledges receipt of satisfactory and complete information covering the business and financial condition of the Employer, including the opportunity to ask questions obtain information regarding the Employer’s financial status, in response to all inquiries in respect thereof. Executive acknowledges and receive answers concerning the terms and conditions of the offering of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
represents that (f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(iA) Executive has been given a preexisting personal or business relationship with the opportunity Employer and with certain of the Employer’s officers and directors, and (B) Executive has the business and financial experience necessary to consult with independent legal counsel regarding his rights and obligations under evaluate this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2investment.
Appears in 2 contracts
Representations and Warranties of Executive. In connection with the Executive's Initial Capital Contribution and the issuance of the Executive hereby Securities hereunder, the Executive Purchaser represents and warrants to each of the Company LLC and the Corporation that:
(ai) The Common Units Executive Securities to be acquired by the Executive Purchaser pursuant to this Agreement shall be acquired for Executivethe Executive Purchaser's own account and not with a view to, or the intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the Company and/or its SubsidiariesCorporation, and the Executive Purchaser is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(ciii) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive Purchaser is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Transaction Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company Corporation and its Subsidiaries this investment opportunity as he has requested.
(fv) This Each of this Agreement, the LLC Agreement and that certain Employment Agreement, dated the Transaction Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the therewith to which Executive (the "Employment Agreement")Purchaser is a party, constitute the legal, valid and binding obligations of Executivethe Executive Purchaser, enforceable against the Executive Purchaser in accordance with their its terms; Executive is ready, subject willing and able as of the date hereof to commence and to continue employment with the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium Corporation in the office to which Executive was appointed by the Board; and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement such agreements by Executive, and Executive's employment with the Company, Corporation and the execution activities (including recruiting activities) on behalf of the Company's contemplated business plans Corporation, do not and shall will not conflict with, violate or cause a material breach of any agreement, contract or instrument (including, without limitation, any noncompete agreement or restrictive covenant instrument) to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 2 contracts
Samples: Executive Purchase Agreement (Choice One Communications Inc), Executive Purchase Agreement (Choice One Communications Inc)
Representations and Warranties of Executive. In connection with the exchange for and issuance of the Executive hereby Securities hereunder, Executive represents and warrants to the Company that:
(ai) As of the date hereof, prior to giving effect to the transactions contemplated hereby, Executive owns beneficially and of record all right, title, and interest in and to the Existing Interest, free and clear of all liens, security interests, encumbrances, and purchase rights or rights of first refusal.
(ii) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(biii) Executive is will serve as a management employee of the Company and/or and its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(div) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein herein, in the Securityholders Agreement, and in the LLC Agreement Performance Vesting Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(ev) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fvi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, the Performance Vesting Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with the Company, Company and the execution of the Company's contemplated business plans its Subsidiaries do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 2 contracts
Samples: Executive Securities Agreement (Comple Tel LLC), Executive Securities Agreement (Comple Tel LLC)
Representations and Warranties of Executive. In connection with the issuance of the Executive hereby Units hereunder, Executive represents and warrants to the Company thatas follows:
(a) The Common Executive Units to be acquired received by Executive pursuant to this Agreement shall will be acquired received for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or Act, any applicable state securities lawslaws or the terms of this Agreement, the LLC Agreement or the Members Agreement, and the Common Units shall Executive’s interests in such units will not be disposed of in contravention of the Securities Act any such laws or any applicable state securities lawsagreements.
(b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(e) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Executive Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he Executive has requested. Executive has reviewed, or has had an opportunity to review, copies of the Related Agreements.
(fc) This Agreement, the LLC Each of this Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute Related Agreements constitutes the legal, valid and binding obligations obligation of Executive, enforceable against Executive in accordance with their its terms, subject to the effect of bankruptcy except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally and general principles limitations on the availability of equity.
(g) The equitable remedies, and the execution, delivery delivery, and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution or any of the Company's contemplated business plans do Related Agreements by Executive does not and shall will not conflict with, violate violate, or cause a material breach of any agreement, contract contract, or instrument to which Executive is a party or by which he is bound or any judgment, order order, or decree to which Executive is subject.
(d) Executive is an “Accredited Investor” as defined in Regulation D under the Securities Act, and Executive shall considers himself to be an experienced and sophisticated investor and to have such knowledge and experience in financial and business matters as are necessary to evaluate the merits and risks of an investment in the Executive Units. Executive acknowledges and understands that an investment in the Executive Units involves substantial risks and Executive is able to bear the economic risks of an investment in the Executive Units pursuant to the terms hereof, including the complete loss of Executive’s investment in the Executive Units. Executive understands that the Executive Units are subject to the transfer restrictions contained herein and in the LLC Agreement and the Members Agreement, and have not wrongfully use any confidential information or trade secrets of third parties in connection with been registered under the performance of his duties hereunderSecurities Act.
(he) Executive is a United States citizen and a resident Prior to or after the issuance of the State Executive Units pursuant to this Agreement, Executive may execute and deliver to the Company and the Internal Revenue Service (the “IRS”) a timely, valid election under Section 83(b) of Kansasthe Code (the “83(b) Election”). Executive understands that under Section 83(b) of the Code, regulations promulgated thereunder, and certain IRS administrative announcements, in the absence of an effective election under Section 83(b) of the Code, the excess of the fair market value of the Executive Units on the date on which any forfeiture restrictions applicable to such Executive Units lapse over the price paid for such units could be reportable as ordinary income at that time. For this purpose, the term “forfeiture restrictions” includes the restrictions on transferability and the vesting conditions imposed under Section 5 and Section 6 hereof, respectively. Executive understands that (i) in making the 83(b) Election, Executive may be taxed at the time the Executive Units are received hereunder to the extent the fair market value of the Executive Units exceeds the price for such units and (ii) in order to be effective, the 83(b) Election must be filed with the IRS within thirty (30) days after the date upon which the Executive Units were issued hereunder. Executive hereby acknowledges that: (x) the foregoing description of the tax consequences of the 83(b) Election is not intended to be complete and, among other things, does not describe state, local or foreign income and other tax consequences; (y) none of the Company, ABRY or any of the Company’s or ABRY’s respective affiliates, officers, employees, agents or representatives (each, a “Related Person”) has provided or is providing Executive with tax advice regarding the 83(b) Election or any other matter, and the Company and ABRY have urged Executive to consult Executive’s own tax advisor with respect to income taxation consequences of receiving, holding and disposing of the Executive Units; and (z) none of the Company, ABRY or any Related Person has advised Executive to rely on any determination by it or its representatives as to the fair market value specified in the 83(b) Election and will have no liability to Executive if the actual fair market value of the Executive Units on the date hereof exceeds the amount specified in the 83(b) Election.
(f) None of the Company, ABRY or any Related Person has made any representation or warranty, express or implied, as to the future performance of the Company or the present or future value of the Executive Units to be issued to Executive. Executive further acknowledges that, with respect to any material not directly prepared by the Executive: (i) all forecasts, projections or illustrations of amounts that might be realized as a result of Executive’s receipt of the Executive Units that the Company, ABRY or a Related Person shared with Executive (collectively, “Illustrations”), if any, were purely hypothetical; (ii) none of the Company, ABRY or any Related Person intended for Executive to rely upon such Illustrations in the process of making an investment decision, and (iii) Executive has been given not relied on such Illustrations in the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executiveprocess of making an investment decision. SECTION 2[initial].
Appears in 2 contracts
Samples: Incentive Unit Agreement (Language Line Costa Rica, LLC), Incentive Unit Agreement (Language Line Holdings, Inc.)
Representations and Warranties of Executive. In connection with the exchange for and issuance of the Executive hereby Securities under the Prior Agreement and the capital contribution for and issuance of the additional Executive Securities hereunder, Executive represents and warrants to the Company that:
(ai) As of the Prior Date, prior to giving effect to the transactions contemplated by the Prior Agreement, Executive owned beneficially and of record all right, title, and interest in and to the Existing Interest, free and clear of all liens, security interests, encumbrances, and purchase rights or rights of first refusal.
(ii) The Common Units Executive Securities acquired by Executive under the Prior Agreement and to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(biii) Executive is will serve as a management employee of the Company and/or and its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(div) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein herein, in the Securityholders Agreement, and in the LLC Agreement Performance Vesting Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(ev) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fvi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, the Performance Vesting Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with the Company, Company and the execution of the Company's contemplated business plans its Subsidiaries do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Representations and Warranties of Executive. In connection with the purchase and sale of the Executive hereby Units hereunder, Executive represents and warrants to the Company thatas of the date hereof as follows:
(a) The Common Executive Units to be acquired by Executive pursuant to this Agreement shall will be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or Act, any applicable state securities lawslaws or the terms of this Agreement, the LLC Agreement or the Members Agreement, and the Common Units shall Executive’s interests in such units will not be disposed of in contravention of the Securities Act any such laws or any applicable state securities lawsagreements.
(b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his the investment in the Common Executive Units for an indefinite period of time and is aware that transfer of because the Common Executive Units may not be possible because (A) such transfer is are subject to contractual the transfer restrictions on transfer set forth contained herein and in the LLC Agreement and (B) the Common Units Members Agreement and have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is availableAct.
(ec) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Executive Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he Executive has requested. Executive has reviewed, or has had an opportunity to review, copies of the following documents: (i) the LLC Agreement, (ii) the Members Agreement and (iii) the Registration Rights Agreement.
(fd) This Agreement, the LLC Each of this Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute Related Agreements constitutes the legal, valid and binding obligations obligation of Executive, enforceable against Executive in accordance with their its terms, subject to the effect of bankruptcy except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally and general principles limitations on the availability of equity.
(g) The equitable remedies, and the execution, delivery delivery, and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution or any of the Company's contemplated business plans do Related Agreements by Executive does not and shall will not conflict with, violate violate, or cause a material breach of any agreement, contract contract, or instrument to which Executive is a party or by which he is bound or any judgment, order order, or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(he) Executive is a United States citizen an “Accredited Investor” as defined in Regulation D under the Securities Act and a resident Executive considers himself to be an experienced and sophisticated investor and to have such knowledge and experience in financial and business matters as are necessary to evaluate the merits and risks of an investment in the State Executive Units. Executive acknowledges and understands that an investment in the Executive Units involves substantial risks and Executive is able to bear the economic risks of Kansasan investment in the Executive Units pursuant to the terms hereof, including the complete loss of Executive’s investment in the Executive Units.
(if) As a condition precedent to each issuance of the Executive has been given the opportunity Units pursuant to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully Executive shall execute and deliver to the Company and the Internal Revenue Service (the “IRS”) a timely, valid election under Section 83(b) of the Code (the “83(b) Election”). Executive understands that under Section 83(b) of the terms Code, regulations promulgated thereunder, and conditions contained herein and intends certain IRS administrative announcements (including Revenue Procedure 2001-43), in the absence of an effective election under Section 83(b) of the Code, the excess of the fair market value of the Executive Units on the date on which any forfeiture restrictions applicable to such Executive Units lapse over the price paid for such terms to be binding and enforceable upon Executive. SECTION 2units (which, for the Executive Units
Appears in 1 contract
Samples: Incentive Unit Purchase Agreement
Representations and Warranties of Executive. In connection with the Executive hereby Purchasers' Initial Capital Contributions and the issuance of the Executive Securities hereunder, each of the Executive Purchasers represents and warrants (and Executive represents and warrants on behalf of himself and each other Executive Purchaser) to each of the LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by the Executive Purchasers pursuant to this Agreement shall be acquired for Executive's the Executive Purchasers' own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.. 2
(bii) Executive will serve on the Management Committee of the LLC and is a management employee of the Company and/or its SubsidiariesCompany, and each of the Executive Purchasers is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(ciii) Each of the Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive Purchasers is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Securityholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Each of the Executive Purchasers has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executiveeach Executive Purchaser, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by each Executive Purchaser and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans Company do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which any Executive Purchaser is a party or by which he any Executive Purchaser is bound or any judgment, order or decree to which any Executive Purchaser is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Executive Purchase Agreement (Allegiance Telecom Inc)
Representations and Warranties of Executive. In connection with the issuance of the Executive hereby Units hereunder, the Trusts (and, by their execution of this Agreement, each individual executing this Agreement on behalf of either Trust) represents and warrants to the Company thatas follows:
(a) The Common Executive Units to be acquired by Executive issued to either Trust pursuant to this Agreement shall will be acquired received for Executive's such Trust’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or Act, any applicable state securities lawslaws or the terms of this Agreement, the LLC Agreement or the Members Agreement, and the Common Units shall neither Trust’s interests in such units will not be disposed of in contravention of the Securities Act any such laws or any applicable state securities lawsagreements.
(b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters Each Trust and is able to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) each such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(e) Executive individual has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Executive Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he such Trust or such individual has requested. Each Trust and each such individual has reviewed, or has had an opportunity to review, copies of the Related Agreements.
(fc) This Agreement, the LLC Each of this Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute Related Agreements constitutes the legal, valid and binding obligations obligation of Executiveeach Trust, enforceable against such Trust in accordance with their its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and limitations on the availability of equitable remedies, and the execution, delivery, and performance of this Agreement or any of the Related Agreements by such Trust does not and will not conflict with, violate, or cause a breach of any agreement, contract, or instrument to which such Trust or either such individual is a party or any judgment, order, or decree to which such Trust or either such individual is subject.
(d) Each Trust is an “Accredited Investor” as defined in Regulation D under the Securities Act, and each Trust and each such individual considers itself, himself or herself to be an experienced and sophisticated investor and to have such knowledge and experience in financial and business matters as are necessary to evaluate the merits and risks of receiving and holding the Executive Units. Each Trust and each such individual acknowledges and understands that an investment in the Executive Units involves substantial risks and each Trust is able to bear the economic risks of an investment in the Executive Units pursuant to the terms hereof, including the complete loss of such Trust’s investment in the Executive Units. Each Trust and each such individual understands that the Executive Units are subject to the effect transfer restrictions contained herein and in the LLC Agreement and the Members Agreement, and have not been registered under the Securities Act.
(e) Prior to or after the issuance of bankruptcy insolvencythe Executive Units pursuant to this Agreement, fraudulent conveyanceExecutive may execute and deliver to the Company and the Internal Revenue Service (the “IRS”) a timely, fraudulent transfervalid election under Section 83(b) of the Code (the “83(b) Election”). Each Trust and each such individual understands that under Section 83(b) of the Code, fraudulent obligationsregulations promulgated thereunder, preferential transferand certain IRS administrative announcements, reorganizationin the absence of an effective election under Section 83(b) of the Code, receivershipthe excess of the fair market value of the Executive Units on the date on which any forfeiture restrictions applicable to such Executive Units lapse over the price paid for such units could be reportable as ordinary income at that time. For this purpose, moratorium the term “forfeiture restrictions” includes the restrictions on transferability and the vesting conditions imposed under Section 5 and Section 6 hereof, respectively. Each Trust and each such individual understands that (i) in making the 83(b) Election, Executive may be taxed at the time the Executive Units are received hereunder to the extent the fair market value of the Executive Units exceeds the price for such units and (ii) in order to be effective, the 83(b) Election must be filed with the IRS within thirty (30) days after the date upon which the Executive Units were issued hereunder. Each Trust and each such individual hereby acknowledges that: (x) the foregoing description of the tax consequences of the 83(b) Election is not intended to be complete and, among other things, does not describe state, local or foreign income and other similar laws relating tax consequences; (y) none of the Company, ABRY or any of the Company’s or ABRY’s respective affiliates, officers, employees, agents or representatives (each, a “Related Person”) has provided or is providing either Trust or either such individual with tax advice regarding the 83(b) Election or any other matter, and the Company and ABRY have urged the Trusts and such individuals to consult with their respective tax advisors with respect to income taxation consequences of receiving, holding and disposing of the Executive Units; and (z) none of the Company, ABRY or affecting any Related Person has advised either Trust or either such individual to rely on any determination by it or its representatives as to the rights fair market value specified in the 83(b) Election and remedies will have no liability to either Trust or either such individual if the actual fair market value of creditors generally the Executive Units on the date hereof exceeds the amount specified in the 83(b) Election.
(f) None of the Company, ABRY or any Related Person has made any representation or warranty, express or implied, as to the future performance of the Company or the present or future value of the Executive Units to be issued to the Trusts. Each Trust and general principles each such individual further acknowledges that, with respect to any material not directly prepared by Executive: (i) all forecasts, projections or illustrations of equityamounts that might be realized as a result of the Trusts’ receipt of the Executive Units that the Company, ABRY or a Related Person shared with the Trusts or either such individual (collectively, “Illustrations”), if any, were purely hypothetical; (ii) none of the Company, ABRY or any Related Person intended for either Trust or either such individual to rely upon such Illustrations in the process of making an investment decision, and (iii) neither Trust nor either such individual has relied on such Illustrations in the process of making an investment decision. [initial] [initial].
(g) The executionEach Trust and each such individual acknowledges that the Executive Units are subject to vesting and repurchase pursuant to this Agreement in the event that Executive’s employment by the Company and its Subsidiaries ceases, delivery and performance which event is beyond the control of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereundereither Trust.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Incentive Unit Agreement (Language Line Holdings, Inc.)
Representations and Warranties of Executive. Executive hereby represents and warrants to the Company thatEmployer:
(a) The Executive understands that this Agreement and the Common Units Stock to be acquired by issued herein, HAS NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, THE STATE OF WASHINGTON, OR ANY OTHER STATE SECURITIES AGENCIES.
(b) Executive pursuant to is not an underwriter and would be acquiring this Agreement shall and the Common Stock to be acquired issued, solely for Executive's investment for his own account and not with a view to, or intention ofor, resale in connection with any distribution thereof in violation of stock within the meaning of the Federal Securities Act Acts, the Washington State Securities Act, or any other applicable state securities laws, and the Common Units shall not be disposed of in contravention of the State Securities Act or any applicable state securities laws.
(b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsActs.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under understands the Securities Actspeculative nature and risks of investments associated with the Employer, and confirms that this Agreement and the Common Stock to be issued would be suitable and consistent with his investment program and that his financial position enables it bear the risks of this investment; and that there may not be any public market for this Agreement and the Common Stock to be issued herein.
(d) Executive is able to bear the economic risk of his investment in This Agreement and the Common Units for an indefinite period of time and is aware that transfer of the Common Units Stock to be issued herein may not be possible because (A) transferred, encumbered, sold, hypothecated, or otherwise disposed of to any person, without the express prior written consent of the Employer, and the prior opinion of counsel for the Employer, that such transfer disposition will not violate Federal and/or State Securities Acts. Disposition shall include, but is subject not limited to contractual restrictions on transfer set forth herein acts of selling, assigning, transferring, pledging, encumbering, hypothecating, giving, and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act any form of conveying, whether voluntary or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is availablenot.
(e) To the extent that any Federal and/or State Securities law shall require, Executive has had an opportunity hereby agrees that: (1) any shares acquired pursuant to ask questions this Agreement shall be without preference as to dividends, assets, or voting rights and receive answers concerning shall have no greater or lesser rights per share than the terms and conditions securities issued for cash or its equivalent; (2) any shares acquired pursuant to this Agreement shall be subordinated in favor of the offering securities to be sold to the public with respect to dividend rights or preferences and liquidation or other distribution rights or preferences in the event of a dissolution, liquidation, bankruptcy, receivership, or sale of all or substantially all of such issuer's assets until such time as the purchasers of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requestedpublic stock offering shall have received back their initial investment at which time all Executive' shall share pro rata in any further distribution.
(f) This Agreement, Executive has fully reviewed or had the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between opportunity to review the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance economic consequences of this Agreement, the LLC Agreement and the Employment Agreement by ExecutiveCommon Stock to be issued, Executive's employment with his attorney and/or other financial advisor, has been afforded access to the Company, books and the execution records of the Company's contemplated business plans do not Corporation (including tax returns) and shall not conflict with, violate is or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given had the opportunity to consult become fully familiar with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2financial affairs of the Corporation.
Appears in 1 contract
Samples: Executive Retention and Employment Agreement (Source Capital Corp)
Representations and Warranties of Executive. In connection with the Capital Contributions and the issuance of Executive hereby Securities hereunder, Executive represents and warrants to each of Investors LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the a Company and/or its SubsidiariesParty, is sophisticated in financial matters and is able to evaluate the risks and benefits of the Executive’s investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his Executive’s investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer Transfer of the Common Units Executive Securities may not be possible because (A) such transfer Transfer is subject to contractual restrictions on transfer Transfer set forth herein and in the LLC Agreement Unitholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, and cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries Parties as he Executive has requested.
(fv) Executive is a United States citizen and a resident of the State of Georgia.
(vi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Unitholders Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable against Executive in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's ’s employment with the Company, and the execution any of the Company's contemplated business plans Company Parties do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject.
(vii) Executive is not a party to or bound by any (A) employment agreement, (B) noncompete agreement or (C) confidentiality agreement that impairs or impedes Executive’s duties to any of the Company Parties; and Executive shall not wrongfully use any confidential information or trade secrets of third parties (other than the Confidential Information) in connection with the performance of his Executive’s duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(iviii) Executive has been given had the opportunity to consult with independent with, and Executive has consulted with, legal counsel regarding his rights of Executive’s choice and obligations under this Agreement, Executive fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2herein.
Appears in 1 contract
Samples: Executive Purchase Agreement (Cbeyond Communications Inc)
Representations and Warranties of Executive. In connection with ------------------------------------------- the purchase and issuance of the Executive hereby Securities under the Prior Agreement and hereunder, Executive represents and warrants to the Company that:
(ai) The Common Units Executive Securities acquired by Executive under the Prior Agreement and to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein herein, in the Securityholders Agreement, and in the LLC Agreement Performance Vesting Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, the Registration Agreement, the Performance Vesting Agreement, the Joinder Agreement, and the other agreements contemplated thereby of even date therewith or herewith, between the Company and the Executive (the "Employment Agreement")as applicable, constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with by the Company, Company and the execution of the Company's contemplated business plans its Subsidiaries do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Representations and Warranties of Executive. Executive hereby represents and warrants to warrants, as of the Company date hereof, that:
(a) The Common Units Executive has full legal capacity to be acquired execute and deliver this Agreement and the Partnership Agreement and to perform his obligations hereunder and thereunder. This Agreement and the Partnership Agreement have been duly authorized (if applicable), executed and delivered by Executive pursuant and are the legal, valid and binding obligations of Executive enforceable against him in accordance with the terms hereof and thereof, subject to this Agreement shall be acquired for Executive's own account applicable bankruptcy, insolvency and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, similar laws affecting creditors’ rights generally and the Common Units shall not be disposed availability of in contravention of the Securities Act or any applicable state securities lawsequitable remedies.
(b) Executive is a management employee acknowledges and agrees that he previously has been furnished with the Partnership Agreement and has been given the opportunity to examine all documents and to ask questions of, and receive answers from, the Partnership and its representatives concerning the Partnership, the Partnership Agreement, the Partnership’s organizational documents and the terms and conditions of issuance of the Company and/or its Subsidiaries, is sophisticated in financial matters I-P Units and is able to evaluate the risks and benefits of the investment in the Common Unitsobtain any additional information which Executive deems necessary.
(c) Executive is an "accredited investor" has been advised that the I-P Units and I Units are subject to restrictions upon transfer as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment set forth in the Common Partnership Agreement. In addition, the I-P Units, I Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units Class B Share have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold resold unless subsequently they are registered under the Securities Act and such applicable state securities laws or unless an exemption from such registration requirements is available.
(e) . Executive is aware that the General Partner and the Partnership are under no obligation to effect any such registration with respect to the I-P Units, I Units or the Class B Share or to file for or comply with any exemption from registration. Executive is acquiring the I-P Units and Class B Share for his own account for investment purposes only and not with a view to, or for resale in connection with, the distribution thereof in violation of the Securities Act. Executive has had such knowledge and experience in financial and business matters that such Executive is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment and is able to bear the economic risk of such investment for an opportunity to ask questions and receive answers concerning indefinite period of time. Executive is an “accredited investor” (as that term is defined in Regulation D under the terms and conditions Securities Act) or the issuance of the offering I-P Units, I Units and Class B Share, as applicable, to Executive otherwise satisfies an exemption from the registration requirements of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requestedSecurities Act.
(f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Incentive Subscription Agreement (Evercore Partners Inc.)
Representations and Warranties of Executive. Executive hereby represents and warrants as of the date hereof and as of the Closing to Apex and the Company thatas follows:
(a) The Common Units Executive has full legal capacity, right and authority to be acquired execute and deliver this Agreement and to perform his or her obligations hereunder. This Agreement has been duly executed and delivered by Executive pursuant and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement shall constitutes a legally valid and binding obligation of Executive, enforceable against Executive in accordance with the terms hereof (except as enforceability may be acquired for Executive's own account limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and not with a view to, or intention of, distribution thereof in violation general principles of equity affecting the Securities Act or any applicable state securities laws, availability of specific performance and the Common Units shall not be disposed of in contravention of the Securities Act or any applicable state securities lawsother equitable remedies).
(b) Executive is the record and beneficial owner (as defined in the Securities Act) of, and has good title to, all of the Executive Shares, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Executive Shares (other than transfer restrictions under the Securities Act)) affecting any such Executive Shares, other than Liens pursuant to (i) this Agreement, (ii) the Third Amended and Restated Certificate of Incorporation of the Company, as amended, (iii) the Business Combination Agreement, (iv) the Investment Agreements (as defined in the Stockholder Support Agreement), (v) any Put & Call Agreement, dated as of December 26, 2019, to which Executive and the Company is a management employee party, (vi) any Promissory Note or Partially Nonrecourse Promissory Note set forth on Section 4.23 of the Company and/or its SubsidiariesDisclosure Schedule or (vii) any applicable securities Laws. The Executive Shares and Executive Options are the only equity securities in the Company owned of record or beneficially by Executive on the date of this Agreement, is sophisticated in financial matters and is able none of Executive’s Executive Shares or Executive Options are subject to evaluate any proxy, voting trust or other agreement or arrangement with respect to the risks voting of such Subject Shares, except as provided hereunder and benefits under the certain Amended and Restated Voting Agreement, dated as of December 26, 2019. Executive has full voting power with respect to the Executive Shares. Other than the Executive Options, Executive does not hold or own any rights to acquire (directly or indirectly) any equity securities of the investment in Company or equity securities convertible into, or which can be exchanged for, equity securities of the Common UnitsCompany, and will not establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Executive Shares or Executive Options.
(c) The execution and delivery of this Agreement by Executive does not, and the performance by Executive of his, her or its obligations hereunder will not, (i) if Executive is not an "accredited investor" as defined individual, conflict with or result in a violation of the organizational documents of Executive, (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under Regulation D promulgated any Contract binding upon Executive, Executive Shares or Executive Options), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by Executive of its, his or her obligations under the Securities Actthis Agreement or (iii) conflict with or violate any Law.
(d) There are no Actions pending against Executive, or to the knowledge of Executive is able to bear the economic risk of his investment threatened against Executive, before (or, in the Common Units for an indefinite period case of time and is aware threatened Actions, that transfer of the Common Units may not would be possible because (Abefore) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act any arbitrator or any applicable state securities laws andGovernmental Authority, thereforewhich in any manner challenges or seeks to prevent, cannot be sold unless subsequently registered enjoin or materially delay the performance by Executive of its, his or her obligations under the Securities Act and such applicable state securities laws or an exemption from such registration is availablethis Agreement.
(e) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units issued hereunder is a sophisticated stockholder and has had full access to such other adequate information concerning the business and financial condition of Apex and the Company and its Subsidiaries as he has requested.
(f) This Agreement, the LLC to make an informed decision regarding this Agreement and that certain Employment Agreement, dated of even date herewith, between the Transactions and has independently and without reliance upon Apex or the Company and the based on such information as Executive (the "Employment Agreement")has deemed appropriate, constitute the legal, valid made its own analysis and binding obligations of Executive, enforceable in accordance with their terms, subject decision to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of enter into this Agreement, the LLC Agreement . Executive acknowledges that Apex and the Employment Agreement by Executive, Executive's employment with the Company, Company have not made and the execution of the Company's contemplated business plans do not and shall not conflict withmake any representation or warranty, violate whether express or cause a material breach implied, of any agreement, contract kind or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties character except as expressly set forth in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2.
Appears in 1 contract
Samples: Named Executive Equity Agreement (Apex Technology Acquisition Corp)
Representations and Warranties of Executive. Executive hereby represents and warrants to the Company that:
(a) The Common Units Executive has all requisite legal capacity to be acquired by Executive pursuant to execute and deliver this Agreement shall be acquired and to perform his or her obligations hereunder and thereunder. All action required on Executive’s part for the execution and delivery of this Agreement have been effectively taken. This Agreement has been duly executed and delivered by Executive's own account . This Agreement is the legal, valid and not binding obligation of Executive enforceable in accordance with a view toits terms, or intention of, distribution thereof in violation except to the extent that general principles of equity restrict the Securities Act or any applicable state securities laws, and the Common Units shall not be disposed availability of in contravention of the Securities Act or any applicable state securities lawsequitable remedies.
(b) Executive is a management employee of understands that the Company and/or its Subsidiaries, is sophisticated in financial matters and is able Liberty A Stock being issued pursuant to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC this Agreement and (B) the Common Units have has not been registered under the Securities Act or under any applicable securities law of any state or other jurisdiction. Executive also understands that the Liberty A Stock is being offered and sold pursuant to an exemption from registration based in part on such Executive’s representations contained in this Agreement.
(c) Executive has substantial experience in evaluating and investing in private placement transactions of securities laws andin companies similar to Liberty and is capable of evaluating the merits and risks of its investment in Liberty. Executive understands that he or she must bear the economic risk of this investment indefinitely unless the Liberty Shares are registered pursuant to the Securities Act of 1933, thereforeas amended (the “Securities Act”), cannot be sold unless subsequently registered or an exemption from registration is available, and that Liberty has no present intention of registering such shares of Liberty Stock, except as provided in the Registration Rights Agreement, dated December 19, 2003, among Liberty and certain other persons and entities (the “Registration Rights Agreement”). Executive also understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such applicable state securities laws exemption may not allow Executive to transfer all or an exemption from such registration any portion of the shares of Liberty A Stock under the circumstances, in the amounts or at the times Executive might propose.
(d) Executive is availableacquiring shares of Liberty A Stock for his or her own account for investment only, and not with a view towards their distribution.
(e) By reason of Executive’s business or financial experience, Executive has the capacity to protect his or her own interests in connection with the transactions contemplated by this Agreement.
(f) Executive has had an opportunity to discuss Liberty’s business, management and financial affairs with Liberty’s management, and has had the opportunity to ask questions of and receive answers concerning from Liberty and its management regarding the terms and conditions of the offering of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equitythis investment.
(g) The executionExecutive is familiar with Regulation D promulgated under the Securities Act and has concluded in consultation with legal counsel, delivery and performance that Executive is an “accredited investor” as that term is defined in Rule 501(a) promulgated under the Securities Act. Without limiting the generality of this Agreement, the LLC Agreement and the Employment Agreement by Executiveforegoing, Executive's employment : (i) has an individual net worth, or joint net worth with Executive’s spouse, which on the Company, and the execution date hereof exceeds $1,000,000; and/or (ii) had an individual income in excess of $200,000 in each of the Company's contemplated business plans do not two most recent years or joint income with Executive’s spouse in excess of $300,000 in each of those years and shall not conflict with, violate or cause has a material breach reasonable expectation of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties reaching the same income level in connection with the performance of his duties hereundercurrent year.
(h) Executive is a United States citizen and a resident aware of the State provisions of KansasRule 144 promulgated under the Securities Act as in effect from time to time, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability of certain current public information about Liberty, the resale occurring following the required holding period under Rule 144 and the number of shares being sold during any three-month period not exceeding specified limitations.
(i) Executive has been given acknowledges that the opportunity certificate(s) for the shares of Liberty A Stock issued to consult Executive may bear restrictive legends as appropriate to comply with independent legal counsel regarding his rights and obligations under this Agreement, fully understands applicable securities laws.
(j) Executive resides in the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2State of Colorado.
Appears in 1 contract
Samples: Noncompetition and Nonsolicitation Agreement (Liberty Media Corp /De/)
Representations and Warranties of Executive. Executive hereby represents and warrants to the Company that:
(a) The Common Units Executive has all requisite legal capacity to be acquired by Executive pursuant to execute and deliver this Agreement shall be acquired and to perform his or her obligations hereunder and thereunder. All action required on Executive’s part for the execution and delivery of this Agreement have been effectively taken. This Agreement has been duly executed and delivered by Executive's own account . This Agreement is the legal, valid and not binding obligation of Executive enforceable in accordance with a view toits terms, or intention of, distribution thereof in violation except to the extent that general principles of equity restrict the Securities Act or any applicable state securities laws, and the Common Units shall not be disposed availability of in contravention of the Securities Act or any applicable state securities lawsequitable remedies.
(b) Executive is a management employee of understands that the Company and/or its Subsidiaries, is sophisticated in financial matters and is able Liberty A Stock being issued pursuant to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC this Agreement and (B) the Common Units have has not been registered under the Securities Act or under any applicable securities law of any state or other jurisdiction. Executive also understands that the Liberty A Stock is being offered and sold pursuant to an exemption from registration based in part on such Executive’s representations contained in this Agreement.
(c) Executive has substantial experience in evaluating and investing in private placement transactions of securities laws andin companies similar to Liberty and is capable of evaluating the merits and risks of its investment in Liberty. Executive understands that he or she must bear the economic risk of this investment indefinitely unless the Liberty Shares are registered pursuant to the Securities Act of 1933, thereforeas amended (the “Securities Act”), cannot be sold unless subsequently registered or an exemption from registration is available, and that Liberty has no present intention of registering such shares of Liberty Stock, except as provided in the Registration Rights Agreement, dated [ ] among Liberty and certain other persons and entities (the “Registration Rights Agreement”). Executive also understands that there is no assurance that any exemption from registration under the Securities Act will be available and that, even if available, such applicable state securities laws exemption may not allow Executive to transfer all or an exemption from such registration any portion of the shares of Liberty A Stock under the circumstances, in the amounts or at the times Executive might propose.
(d) Executive is availableacquiring shares of Liberty A Stock for his or her own account for investment only, and not with a view towards their distribution.
(e) By reason of Executive’s business or financial experience, Executive has the capacity to protect his or her own interests in connection with the transactions contemplated by this Agreement.
(f) Executive has had an opportunity to discuss Liberty’s business, management and financial affairs with Liberty’s management, and has had the opportunity to ask questions of and receive answers concerning from Liberty and its management regarding the terms and conditions of the offering of the Common Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(f) This Agreement, the LLC Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equitythis investment.
(g) The executionExecutive is familiar with Regulation D promulgated under the Securities Act and has concluded in consultation with legal counsel, delivery and performance that Executive is an “accredited investor” as that term is defined in Rule 501(a) promulgated under the Securities Act. Without limiting the generality of this Agreement, the LLC Agreement and the Employment Agreement by Executiveforegoing, Executive's employment : (i) has an individual net worth, or joint net worth with Executive’s spouse, which on the Company, and the execution date hereof exceeds $1,000,000; and/or (ii) had an individual income in excess of $200,000 in each of the Company's contemplated business plans do not two most recent years or joint income with Executive’s spouse in excess of $300,000 in each of those years and shall not conflict with, violate or cause has a material breach reasonable expectation of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties reaching the same income level in connection with the performance of his duties hereundercurrent year.
(h) Executive is a United States citizen and a resident aware of the State provisions of KansasRule 144 promulgated under the Securities Act as in effect from time to time, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions, including, among other things: the availability of certain current public information about Liberty, the resale occurring following the required holding period under Rule 144 and the number of shares being sold during any three-month period not exceeding specified limitations.
(i) Executive has been given acknowledges that the opportunity certificate(s) for the shares of Liberty A Stock issued to consult Executive may bear restrictive legends as appropriate to comply with independent legal counsel regarding his rights and obligations under this Agreement, fully understands applicable securities laws.
(j) Executive resides in the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2State of Colorado.
Appears in 1 contract
Representations and Warranties of Executive. (a) Executive hereby represents and warrants to the Company that:
(a) The Common Units that Executive is under no legal disability with respect to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities lawsentering into, and the Common Units shall not be disposed of in contravention of the Securities Act or any applicable state securities lawsperforming under, this Agreement.
(b) Executive is acquiring the Company’s common stock for Executive’s own account for investment only and not with a management employee view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act of 1933, as amended (the Company and/or its Subsidiaries“1933 Act”). Executive agrees not to sell, is sophisticated in financial matters hypothecate or otherwise transfer the Company’s common stock issued to Executive hereunder, unless such securities are registered under the federal and is able to evaluate the risks and benefits of the investment applicable state securities laws or unless, in the Common Unitsopinion of counsel satisfactory to the Company, an exemption from such law is available.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated understands that: (1) the shares of Company common stock has not been and are not being registered under the Securities Act1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, or (B) Executive shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration requirements; (2) any sale of such securities made in reliance on Rule 144 under the 1933 Act (or a successor rule thereto) (“Rule 144”) may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of such securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1900 Xxx) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC thereunder; and (3) except as otherwise set forth in this Agreement, neither the Company nor any other person is under any obligation to register such securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. There can be no assurance that there will be any market for the Company’s common stock issued to Executive hereunder.
(d) Executive is able to understands that the certificates representing the Company’s common stock shall bear a restrictive legend in substantially the economic risk of his investment in the Common Units for an indefinite period of time and is aware that transfer of the Common Units may not be possible because (Afollowing form: THESE SECURITIES HAVE BEEN ISSUED IN RELIANCE UPON THE EXEMPTION FROM REGISTRATION AFFORDED BY SECTION 4(a)(2) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement and (B) the Common Units have not been registered under the Securities Act or any applicable state securities laws andOF THE SECURITIES ACT OF 1933, thereforeAS AMENDED, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is availableAND MAY NOT BE TRANSFERRED WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT ANY SUCH PROPOSED TRANSFER IS IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS.
(e) Executive has had received and reviewed in their entireties: (1) this Agreement and each representation, warranty and covenant set forth herein; and (2) all due diligence and other information, including the SEC Filings, necessary to verify the accuracy and completeness of such representations, warranties and covenants; Executive has received answers to all questions regarding an opportunity to ask questions investment in the Company; and receive answers concerning Executive has relied on the terms information contained therein and conditions of the offering of the Common Units issued hereunder and has had full access to such have not been furnished any other information concerning the Company and its Subsidiaries as he has requesteddocuments, literature, memorandum or prospectus.
(f) This AgreementExecutive is not relying on any statements or representations of the Company or any of its agents for legal, tax or investment advice with respect to this investment in the Company’s common stock, the LLC transactions contemplated by this Agreement and that certain Employment Agreement, dated of even date herewith, between or the Company and the Executive (the "Employment Agreement"), constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar securities laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunderjurisdiction.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Executive Engagement Agreement (Black Bird Biotech, Inc.)
Representations and Warranties of Executive. In connection with the Capital Contributions and the issuance of Executive hereby Securities hereunder, Executive represents and warrants to each of the LLC, Investors LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the a Company and/or its SubsidiariesParty, is sophisticated in financial matters and is able to evaluate the risks and benefits of the Executive’s investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his Executive’s investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer Transfer of the Common Units Executive Securities may not be possible because (A) such transfer Transfer is subject to contractual restrictions on transfer Transfer set forth herein and in the LLC Agreement Unitholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, and cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries Parties as he Executive has requested.
(fv) Executive is a United States citizen and a resident of the State of Florida.
(vi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Unitholders Agreement, and the other agreements contemplated thereby of even date herewiththerewith constitute (and, between when executed and delivered by Executive, the Company and the Executive (the "Employment Agreement"), constitute Investors LLC Agreement shall constitute) the legal, valid and binding obligations of Executive, enforceable against Executive in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's ’s employment with the Company, and the execution any of the Company's contemplated business plans Company Parties do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject.
(vii) Executive is not a party to or bound by any (A) employment agreement, (B) noncompete agreement or (C) confidentiality agreement that impairs or impedes Executive’s duties to any of the Company Parties; and Executive shall not wrongfully use any confidential information or trade secrets of third parties (other than the Confidential Information) in connection with the performance of his Executive’s duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(iviii) Executive has been given had the opportunity to consult with independent with, and Executive has consulted with, legal counsel regarding his rights of Executive’s choice and obligations under this Agreement, Executive fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2herein.
Appears in 1 contract
Samples: Executive Purchase Agreement (Cbeyond Communications Inc)
Representations and Warranties of Executive. In connection with the purchase and sale of the Executive hereby Units hereunder, Executive represents and warrants to the Company thatas of the date hereof as follows:
(a) The Common Executive Units to be acquired by Executive pursuant to this Agreement shall will be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or Act, any applicable state securities lawslaws or the terms of this Agreement, the LLC Agreement or the Members Agreement, and the Common Units shall Executive’s interests in such units will not be disposed of in contravention of the Securities Act any such laws or any applicable state securities lawsagreements.
(b) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Units.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive is able to bear the economic risk of his the investment in the Common Executive Units for an indefinite period of time and is aware that transfer of because the Common Executive Units may not be possible because (A) such transfer is are subject to contractual the transfer restrictions on transfer set forth contained herein and in the LLC Agreement and (B) the Common Units Members Agreement and have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is availableAct.
(ec) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Executive Units issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he Executive has requested. Executive has reviewed, or has had an opportunity to review, copies of the following documents: (i) the LLC Agreement, (ii) the Members Agreement and (iii) the Registration Rights Agreement.
(fd) This Agreement, the LLC Each of this Agreement and that certain Employment Agreement, dated of even date herewith, between the Company and the Executive (the "Employment Agreement"), constitute Related Agreements constitutes the legal, valid and binding obligations obligation of Executive, enforceable against Executive in accordance with their its terms, subject to the effect of bankruptcy except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and or other similar laws relating to or affecting the creditors’ rights and remedies of creditors generally and general principles limitations on the availability of equity.
(g) The equitable remedies, and the execution, delivery delivery, and performance of this Agreement, the LLC Agreement and the Employment Agreement by Executive, Executive's employment with the Company, and the execution or any of the Company's contemplated business plans do Related Agreements by Executive does not and shall will not conflict with, violate violate, or cause a material breach of any agreement, contract contract, or instrument to which Executive is a party or by which he is bound or any judgment, order order, or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(he) Executive is a United States citizen an “Accredited Investor” as defined in Regulation D under the Securities Act and a resident Executive considers himself to be an experienced and sophisticated investor and to have such knowledge and experience in financial and business matters as are necessary to evaluate the merits and risks of an investment in the State Executive Units. Executive acknowledges and understands that an investment in the Executive Units involves substantial risks and Executive is able to bear the economic risks of Kansasan investment in the Executive Units pursuant to the terms hereof, including the complete loss of Executive’s investment in the Executive Units.
(f) As a condition precedent to each issuance of the Executive Units pursuant to this Agreement, Executive shall execute and deliver to the Company and the Internal Revenue Service (the “IRS”) a timely, valid election under Section 83(b) of the Code (the “83(b) Election”). Executive understands that under Section 83(b) of the Code, regulations promulgated thereunder, and certain IRS administrative announcements (including Revenue Procedure 2001-43), in the absence of an effective election under Section 83(b) of the Code, the excess of the fair market value of the Executive Units on the date on which any forfeiture restrictions applicable to such Executive Units lapse over the price paid for such units (which, for the Executive Units issued hereunder, is $0.00) is reportable as ordinary income at that time. For this purpose, the term “forfeiture restrictions” means the restrictions on transferability, the repurchase provisions and the vesting conditions imposed under Section 5 and Section 6 hereof. Executive understands that (i) in making the 83(b) Election, Executive may be taxed at the time the Executive Units are acquired hereunder to the extent the fair market value of the Executive Units exceeds the purchase price for such units and (ii) in order to be effective, the 83(b) Election must be filed with the IRS within thirty (30) days after the date upon which the Executive Units were purchased hereunder. Executive hereby acknowledges that: (x) the foregoing description of the tax consequences of the 83(b) Election is not intended to be complete and, among other things, does not describe state, local or foreign income and other tax consequences; (y) none of the Company, ABRY or any of the Company’s or ABRY’s respective affiliates, officers, employees, agents or representatives (each, a “Related Person”) has provided or is providing Executive with tax advice regarding the 83(b) Election or any other matter, and the Company and ABRY have urged Executive to consult Executive’s own tax advisor with respect to income taxation consequences of purchasing, holding and disposing of the Executive Units; and (z) none of the Company, ABRY or any Related Person has advised Executive to rely on any determination by it or its representatives as to the fair market value specified in the 83(b) Election and will have no liability to Executive if the actual fair market value of the Executive Units on the date hereof exceeds the amount specified in the 83(b) Election.
(g) None of the Company, ABRY or any Related Person has made any representation or warranty, express or implied, as to the future performance of the Company or the present or future value of the Executive Units to be purchased by Executive. Executive further acknowledges that: (i) all forecasts, projections or illustrations of amounts that might be realized as a result of Executive’s purchase of the Executive Units that the Company, ABRY or a Related Person shared with Executive (collectively, “Illustrations”), if any, were purely hypothetical; (ii) none of the Company, ABRY or any Related Person intended for Executive to rely upon such Illustrations in the process of making an investment decision, and (iii) Executive has been given not relied on such Illustrations in the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executiveprocess of making an investment decision. SECTION 2_____ [initial].
Appears in 1 contract
Samples: Incentive Unit Purchase Agreement (Atlantic Broadband Management, LLC)
Representations and Warranties of Executive. In connection with the Initial Capital Contribution and the issuance of the Executive hereby Securities hereunder, Executive represents and warrants to each of the LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive will serve on the Management Committee of the LLC, is a management employee of the Company and/or its SubsidiariesCompany, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Securityholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement Joinder and that certain Employment Rights Agreement, dated the LLC Agreement, the Securityholders Agreement, the Registration Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans Company do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Executive Purchase Agreement (Allegiance Telecom Inc)
Representations and Warranties of Executive. In connection with the Executive hereby Purchasers' Initial Capital Contributions and the issuance of the Executive Securities hereunder, each of the Executive Purchasers represents and warrants (and Executive represents and warrants on behalf of himself and each other Executive Purchaser) to each of the LLC and the Company that:: 2
(ai) The Common Units Executive Securities to be acquired by the Executive Purchasers pursuant to this Agreement shall be acquired for Executive's the Executive Purchasers' own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive will serve on the Management Committee of the LLC and is a management employee of the Company and/or its SubsidiariesCompany, and each of the Executive Purchasers is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(ciii) Each of the Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(d) Executive Purchasers is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Securityholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Each of the Executive Purchasers has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executiveeach Executive Purchaser, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by each Executive Purchaser and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans Company do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which any Executive Purchaser is a party or by which he any Executive Purchaser is bound or any judgment, order or decree to which any Executive Purchaser is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Executive Purchase Agreement (Allegiance Telecom Inc)
Representations and Warranties of Executive. In connection with the Capital Contributions and the issuance of Executive hereby Securities hereunder, Executive represents and warrants to each of the LLC, Investors LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the a Company and/or its SubsidiariesParty, is sophisticated in financial matters and is able to evaluate the risks and benefits of the Executive’s investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his Executive’s investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer Transfer of the Common Units Executive Securities may not be possible because (A) such transfer Transfer is subject to contractual restrictions on transfer Transfer set forth herein and in the LLC Agreement Unitholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, and cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws taws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries Parties as he Executive has requested.
(fv) Executive is a United States citizen and a resident of the State of Georgia.
(vi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Unitholders Agreement, and the other agreements contemplated thereby of even date herewiththerewith constitute (and, between when executed and delivered by Executive, the Company and the Executive (the "Employment Agreement"), constitute Investors LLC Agreement shall constitute) the legal, valid and binding obligations of Executive, enforceable against Executive in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's ’s employment with the Company, and the execution any of the Company's contemplated business plans Company Parties do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject.
(vii) Executive is not a party to or bound by any (A) employment agreement, (B) noncompete agreement or (C) confidentiality agreement that impairs or impedes Executive’s duties to any of the Company Parties; and Executive shall not wrongfully use any confidential information or trade secrets of third parties (other than the Confidential Information) in connection with the performance of his Executive’s duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(iviii) Executive has been given had the opportunity to consult with independent with, and Executive has consulted with, legal counsel regarding his rights of Executive’s choice and obligations under this Agreement, Executive fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2herein.
Appears in 1 contract
Samples: Executive Purchase Agreement (Cbeyond Communications Inc)
Representations and Warranties of Executive. In connection with ------------------------------------------- the purchase and issuance of the Executive hereby Securities under the Prior Agreement and hereunder, Executive represents and warrants to the Company that:
(ai) The Common Units Executive Securities acquired by Executive under the Prior Agreement and to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of the Company and/or its Subsidiaries, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein herein, in the Securityholders Agreement, and in the LLC Agreement Performance Vesting Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, the Registration Agreement, the Performance Vesting Agreement, the Joinder Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with by the Company, Company and the execution of the Company's contemplated business plans its Subsidiaries do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Representations and Warranties of Executive. In connection with the Capital Contributions and the issuance of Executive hereby Securities hereunder, Executive represents and warrants to each of the LLC, Investors LLC and the Company that:
(ai) The Common Units Executive Securities to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's ’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive is a management employee of an “accredited investor” as such term is defined in Rule 501 (a) promulgated under the Company and/or its SubsidiariesSecurities Act, is sophisticated in financial matters and is able to evaluate the risks and benefits of the Executive’s investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his Executive’s investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer Transfer of the Common Units Executive Securities may not be possible because (A) such transfer Transfer is subject to contractual restrictions on transfer Transfer set forth herein and in the LLC Agreement Unitholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, and cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries Parties as he Executive has requested.
(fv) Executive is a United States citizen and a resident of the State of Texas.
(vi) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Unitholders Agreement, and the other agreements contemplated thereby of even date herewiththerewith constitute (and, between when executed and delivered by Executive, the Company and the Executive (the "Employment Agreement"), constitute Investors LLC Agreement shall constitute) the legal, valid and binding obligations of Executive, enforceable against Executive in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreementsuch agreements by Executive and Executive’s pending employment (and, upon the LLC Agreement and the Employment Agreement by commencement of Executive’s employment, Executive's employment ’s employment) with the Company, and the execution any of the Company's contemplated business plans Company Parties do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he Executive is bound or any judgment, order or decree to which Executive is subject.
(vii) Executive is not a party to or bound by any (A) employment agreement, (B) noncompete agreement or (C) confidentiality agreement that would, in any case, upon the commencement of Executive’s employment with any of the Company Parties impair or impede Executive’s duties to any of the Company Parties; and Executive shall not wrongfully use any confidential information or trade secrets of third parties (other than the Confidential Information) in connection with the performance of his Executive’s duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(iviii) Executive has been given had the opportunity to consult with independent with, and Executive has consulted with, legal counsel regarding his rights of Executive’s choice and obligations under this Agreement, Executive fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2herein.
Appears in 1 contract
Samples: Executive Purchase Agreement (Cbeyond Communications Inc)
Representations and Warranties of Executive. In connection with the Initial Capital Contribution and the Second Initial Capital Contribution and the issuance of the Executive hereby Securities under the Prior Agreement and hereunder, Executive represents and warrants to each of the LLC and the Company that:
(ai) The Common Units Executive Securities acquired by Executive under the Prior Agreement and to be acquired by Executive pursuant to this Agreement shall be acquired for Executive's own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws, and the Common Units Executive Securities shall not be disposed of in contravention of the Securities Act or any applicable state securities laws.
(bii) Executive will serve on the Management Committee of the LLC, is a management employee of the Company and/or its SubsidiariesCompany, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common UnitsExecutive Securities.
(c) Executive is an "accredited investor" as defined under Regulation D promulgated under the Securities Act.
(diii) Executive is able to bear the economic risk of his investment in the Common Units Executive Securities for an indefinite period of time and is aware that transfer of the Common Units Executive Securities may not be possible because (A) such transfer is subject to contractual restrictions on transfer set forth herein and in the LLC Agreement Securityholders Agreement, and (B) the Common Units Executive Securities have not been registered under the Securities Act or any applicable state securities laws and, therefore, cannot be sold unless subsequently registered under the Securities Act and such applicable state securities laws or an exemption from such registration is available.
(eiv) Executive has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Common Units Executive Securities issued hereunder and has had full access to such other information concerning the Company and its Subsidiaries as he has requested.
(fv) This Agreement, the LLC Agreement and that certain Employment Agreement, dated the Securityholders Agreement, and the other agreements contemplated thereby of even date herewith, between the Company and the Executive (the "Employment Agreement"), therewith constitute the legal, valid and binding obligations of Executive, enforceable in accordance with their terms, subject to and the effect of bankruptcy insolvency, fraudulent conveyance, fraudulent transfer, fraudulent obligations, preferential transfer, reorganization, receivership, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally and general principles of equity.
(g) The execution, delivery and performance of this Agreement, the LLC Agreement such agreements by Executive and the Employment Agreement by Executive, Executive's employment with the Company, and the execution of the Company's contemplated business plans Company do not and shall not conflict with, violate or cause a material breach of any agreement, contract or instrument to which Executive is a party or by which he is bound or any judgment, order or decree to which Executive is subject, and Executive shall not wrongfully use any confidential information or trade secrets of third parties in connection with the performance of his duties hereunder.
(h) Executive is a United States citizen and a resident of the State of Kansas.
(i) Executive has been given the opportunity to consult with independent legal counsel regarding his rights and obligations under this Agreement, fully understands the terms and conditions contained herein and intends for such terms to be binding and enforceable upon Executive. SECTION 2
Appears in 1 contract
Samples: Executive Purchase Agreement (Allegiance Telecom Inc)