Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that: (a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act. (b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities. (c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent. (d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required. (f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent. (g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below). (h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 4 contracts
Samples: Placement Agent Agreement (Rush Financial Technologies Inc), Placement Agent Agreement (Rush Financial Technologies Inc), Investment Banking Agreement (Entropin Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, to the Company, as of the date hereof, Fund that:
(a) The Placement Agent is a limited liability company duly organized, validly existing All references to and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by information concerning the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating Registration Statement, the Prospectus and the Statement of Additional Information are accurate in all material respects, and, as to the Placement Agent, if anythe Registration Statement, will the Prospectus and the Statement of Additional Information do not include contain any misleading or untrue statement of a material fact or omit to state a material fact which is necessary in order to make prevent the statements made therein, in light of the circumstances under in which they were made, not from being misleading.;
(eb) The Placement Agent is (i) a broker-dealer corporation duly registered pursuant to organized and validly existing under the provisions laws of the Exchange Act; (ii) State of Iowa, is a member in good standing of FINRA and has full power and authority to act as selling agent in the NASDmanner contemplated by this Agreement and as described in the Registration Statement, the Prospectus and the Statement of Additional Information; and (iii) is duly registered qualified to conduct business as a broker-dealer under the applicable statutes foreign corporation and regulations of each state is in good standing in every jurisdiction in which the Securities will be offered and soldcharacter of such business requires such qualification, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best extent that the failure to so qualify would not reasonably be expected to have a material adverse effect on the business or operations of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.;
(gc) All requisite authorizationsThe Placement Agent is in good standing and in compliance with all applicable broker/dealer registration requirements in the places where the Units will be sold by it, approvals and any use or orders from any court or any governmental or regulatory official or body necessary for distribution of the consummation Registration Statement, the Prospectus and the Statement of Additional Information by the Placement Agent will comply with the terms and conditions for use and/or distribution set forth in the Prospectus and the Statement of Additional Information, with the procedures set forth in this Agreement, and with the 1933 Act, the 1934 Act, the 1940 Act, the Advisers Act, all applicable state securities laws, the rules and regulations promulgated under all such acts and all such laws, and all applicable rules and regulations of FINRA and other self-regulatory organizations;
(d) The Placement Agent has obtained all required governmental and regulatory approvals and licenses to perform its obligations under this Agreement and to act as described in the Registration Statement, the Prospectus and the Statement of Additional Information, and the performance of its obligations under this Agreement and its acting as described in the Registration Statement, the Prospectus and the Statement of Additional Information will not violate or result in a breach of any provisions of its Articles of Incorporation or by-laws or any agreement, order, law or regulation binding upon it; and
(e) This Agreement and the Escrow Agreement have each been duly and validly authorized, executed and delivered on behalf of the transactions contemplated by this Agreement will have been obtained or Placement Agent, and are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives each a valid and binding agreement of the Placement Agent or enforceable against the Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together in accordance with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingits terms.
Appears in 3 contracts
Samples: Placement Agent Agreement (Zea Capital Fund LLC), Placement Agent Agreement (Zea Capital Fund LLC), Placement Agent Agreement (Zea Capital Fund LLC)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, to the Company, as of the date of execution hereof, thatand during the term of the Offering, as follows:
(a) The Placement Agent has been duly formed and is a limited liability company duly organized, validly existing and in good standing corporation under the laws of the State of Delaware, Utah with the limited liability company all requisite power and authority to conduct its business, to execute and deliver enter into this Agreement, Agreement and to perform the carry out its obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Acthereunder.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect laws of bankruptcy, insolvency, reorganizationcreditors’ right and equitable principles and matters of public policy, moratorium, fraudulent conveyance and other similar laws relating to or affecting is binding on the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered Placement Agent in a proceeding in equity or at law), and (ii) accordance with its terms; the indemnification provisions performance of this Agreement may be held to violate public policy (under either federal or state law) in and the context consummation of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default underunder (i) any indenture, its articles mortgage, deed of organization or operating trust, loan agreement, any bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which it is a party or by which it is the Placement Agent will be bound, (ii) the Placement Agent’s Articles of Incorporation, as amended, or (iii) any statute or any judgment, decree, order or, to its knowledge, any statuteorder, rule or regulation applicable to of any court or governmental agency or body having jurisdiction over the Placement AgentAgent or its properties; and no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Placement Agent of the transactions on its part contemplated herein.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ec) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended (the “1934 Act; (ii) ”), is a member in good standing of the NASD; FINRA, and (iii) is duly registered or licensed as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and soldBlue Sky Laws, except in such states in which the Placement Agent is exempt from registration or licensing or such registration or licensing is not otherwise required. The Placement Agent agrees to maintain its registration or licenses, or its exemption therefrom, in good standing throughout the term of the Offering of the Shares and agrees to comply with all statutes and other requirements applicable to it with respect to its activities within those jurisdictions.
(d) Neither the Placement Agent nor any director or officer of the Placement Agent (nor any other person serving in a similar capacity) or other employee or agent of the Placement Agent to be involved in the sale of the Shares, either directly or in a supervisory capacity:
(i) has been convicted within 10 years prior hereto of any crime or offense involving the purchase or sale of any security, involving the making of a false filing with the Securities and Exchange Commission (the “Commission”) or any state security agency (“State Agency”), or arising out of such person's conduct as an underwriter, broker, dealer, municipal securities dealer or investment adviser;
(ii) is subject to any order, judgment or decree of any court of competent jurisdiction temporarily or permanently enjoining or restraining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security, involving the making of a false filing with the Commission or any State Agency or arising out of such person's conduct as an underwriter, broker, dealer, municipal securities dealer or investment adviser;
(iii) is subject to an order of the Commission entered pursuant to Section 15(b)(1)(B) of the 1934 Act; has been found by the Commission to be a cause of any such order which is still in effect; or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) Except of the Investment Advisers Act of 1940, as amended;
(iv) has been or is suspended or expelled from membership in, or suspended or barred from association with a member of, a national or regional securities dealers association or a national securities exchange or a Canadian securities exchange for conduct inconsistent with just and equitable principles of trade;
(v) is subject to a United States Post Office false representation order, or is subject to any restraining order or preliminary injunction entered under Section 3007 of Title 39, United States Code, with respect to any conduct alleged to constitute postal fraud, or otherwise violated Section 3005 of that Title;
(vi) has been an underwriter or named as an underwriter of any securities (A) covered by any registration statement which is the subject of any proceeding or examination under Section 8A of the 1933 Act, as amended, or is the subject of any refusal order or stop order entered thereunder within five years prior to the date hereof; or (B) covered by any filing which is subject to a pending proceeding under Section 230.258 of the Commission’s rules or any similar rules or to an Order entered thereunder within five years prior to the date hereof;
(vii) is or has been subject to any order, judgment or decree of any governmental agency or administrator, or of any court of competent jurisdiction, revoking or suspending for cause any license, permit or other authority of such person or of any corporation of which he is an officer or director, to engage in the securities business or in the sale of a particular security or temporarily or permanently restraining or enjoining any such person or any corporation of which he is an officer or director from engaging in or continuing any conduct, practice, or employment in connection with the purchase or sale of securities, or convicting such person of any felony or misdemeanor involving a security or any aspect of the securities business, or of theft or of any felony; or
(viii) has taken, nor will take, any action, directly or indirectly, so as to cause the Offering to fail to be entitled to exemption under Section 4(a)(2) of the 1933 Act.
(e) There has occurred no event with respect to the Placement Agent (i) that would make the Offering ineligible for reliance on Rule 506 under the 1933 Act as a result of the application of Rule 506(d) under the Securities Act, or (ii) that is required to be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best Memorandum as a result of the Placement Agent's knowledge, threatened against or affecting application of Rule 506(e) under the Placement AgentSecurities Act.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 3 contracts
Samples: Placement Agent Agreement, Placement Agent Agreement (Prolung Inc), Placement Agent Agreement (Fresh Medical Laboratories, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents represents, covenants and warrants to, and covenants and agrees with, the Company, as of the date hereofhereof and as of the Closing Date, except for the representations and warranties that speak as of a specific date, which shall be made as of such date, to the Company that:
(a) The Placement Agent is registered as a broker-dealer under applicable federal and state laws, is a member in good standing of FINRA and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the services the Placement Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the Offering.
(b) The Placement Agent is a limited liability company duly organized, organized and validly existing and in good standing under the laws of the State of DelawareGeorgia and is in good standing, with the limited liability company and has all requisite power and authority to conduct its business, provide the services to execute and deliver this Agreement, and be furnished to perform the obligations contemplated herein. Company hereunder
(c) The Placement Agent is an "accredited investor," as such term is defined will not provide any service or engage in Regulation D promulgated under any activity, and it will use its commercially reasonable efforts to not permit any of its employees, agents, or representatives to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the Actsale of the Shares, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
(bd) Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Shares as described in the Offering Circular shall control the conduct of the sale of the Shares, and neither the Placement Agent nor any of its respective employees, agents, representatives or affiliates shall take any action in connection with the sale of the Shares contrary to those terms and conditions.
(e) In connection with or during the course of the sale of the Shares, neither the Placement Agent nor any employee, agent, representative or affiliate of the Placement Agent will make any representation or provide any information to any Purchaser or potential Purchaser other than the representations and information contained in the Offering Circular or other information specifically approved by the Company.
(f) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and, when executed by the Company, will constitute the valid and constitutes the valid, binding and enforceable agreement of the Placement AgentAgent enforceable against it in accordance with its terms, except in all cases to the extent that (i) such enforcement enforceability may be subject to the effect of limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other moratorium or similar laws relating to affecting the enforcement of creditors’ rights and remedies generally or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and registered broker-dealers whose accounts may be protected by the Securities Investor Protection Corporation; (ii) the indemnification provisions availability of this Agreement the equitable remedy of specific performance and injunctive relief is subject to the discretion of the court before which the proceedings may be held brought; and (iii) the enforceability of the provisions hereof relating to violate indemnification and contribution may be limited by applicable federal, state or other securities laws, or the public policy (under either federal or state law) in the context of the offer or sale of securitiesunderlying such laws.
(cg) The Placement Agent's Agent and its employees, agents and representatives who shall perform any of the services required hereunder to be performed by it, shall be authorized and shall have all licenses, approvals and permits necessary to perform such services, and the Placement Agent shall be a registered broker-dealer and selling agent in the jurisdictions in which the Company is relying on such registration for the offer and sale of the Shares after the date of this Agreement.
(h) The execution and delivery of this AgreementAgreement by the Placement Agent, and the performance of its obligations hereunder, will not result in a breach or violation of any fulfillment of the terms set forth herein and provisions the consummation of the transactions contemplated hereby shall not violate or conflict with the organizing documents of the Placement Agent or violate, conflict with or constitute a breach of, or default (or an event which, with notice or lapse of time, or both, would constitute a default default) under, its articles of organization or operating any agreement, any agreement indenture or other instrument to which it is a party or by which it the Placement Agent is boundbound or under any governmental license or permit or any law, administrative regulation, authorization, approval or order or court decree, injunction or order, which breach, default or violation could have a material adverse effect on the condition (financial or otherwise), operations, business, properties or assets of the Placement Agent or its ability to perform its obligations under this Agreement.
(i) Any proceeds received by the Placement Agent to purchase Shares will be handled in accordance with applicable requirements of Rule 15c2-4 under the 1934 Act by the prompt transmission of such proceeds to the escrow agent designated by the Company and the Placement Agent (the “Escrow Agent”).
(j) No action or proceeding against the Placement Agent before the Securities and Exchange Commission, FINRA, any state securities commission, or any judgment, decree, order state or federal court is pending or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent’s knowledge, if anythreatened concerning the Placement Agent’s activities as a registered and licensed broker-dealer which could have a material adverse effect on the condition (financial or otherwise), will operations, business, properties or assets of the Placement Agent or its ability to perform its obligations under this Agreement.
(k) The information set forth in the Offering Circular section entitled “Plan of Distribution” includes the only written information furnished to the Company by and on behalf of the Placement Agent expressly for use in connection with the preparation of the Offering Circular, and it is correct and complete in all material respects and does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading.
Appears in 2 contracts
Samples: Placement Agent Agreement (First Colebrook Bancorp, Inc.), Placement Agent Agreement (First Colebrook Bancorp, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(cb) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ec) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities Shares will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(fd) Except as will Placement Agent and each of its employees and representatives who shall perform any of the services required hereunder to be disclosed performed by Placement Agent shall be duly authorized and shall have all licenses, approvals and permits necessary, to perform such services contemplated by this Agreement, and Placement Agent is a registered selling Placement Agent in the Offering Memorandum, there jurisdictions in which the Shares are no actions, suits, proceedings or investigations to be offered for sale by Placement Agent and will remain registered in such jurisdictions in which the Company is relying on such registration for the sale of the Shares by the Placement Agent.
(e) There is not now pending ornor, to the best of the Placement Agent's knowledge, threatened against Placement Agent any action or affecting proceeding before the Commission, the NASD, any state securities commission or any state or federal court concerning Placement Agent's activities as a broker-dealer.
(f) With respect to its participation in the offer and sale of the Shares in the offering, the Placement AgentAgent agrees to comply and shall comply with any applicable requirements of the Act, the Exchange Act, and the published rules and regulations of the Commission thereunder, and the applicable state securities or blue sky laws, and the Rules of the NASD, specifically including, but not in any way limited to, Rules 2440, 2730, 2740, and 2750 therein. In particular, the Placement Agent agrees to handle any funds received for the purchase of Shares in accordance with Rule 15c2-4 promulgated under the Exchange Act. In addition, the Placement Agent shall, in accordance with applicable law or as prescribed by any state securities administrator, provide to any prospective investor copies of any prescribed document that is part of the Registration Statement.
(g) In offering the Shares for sale, the Placement Agent shall not give or provide any information or make any representation other than those contained in the Prospectus, the sales literature or any other document provided to you for such purpose by the Company.
(h) The Placement Agent shall solicit purchases of the Shares only in the jurisdictions in which the Placement Agent is legally qualified to so act and in which the Company has advised it that such solicitations can be made.
(i) The information contained in the Prospectus relating to the Placement Agent does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(j) Any written or oral information provided to prospective purchasers of Shares by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Prospectus, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Texas, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(l) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.Date
Appears in 2 contracts
Samples: Placement Agent Agreement (Vincera, Inc.), Placement Agent Agreement (Vincera, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Company as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delawarejurisdiction in which it was formed, with the limited liability company all requisite power and authority to conduct its business, to execute and deliver enter into this Agreement, Agreement and to perform the carry out your obligations contemplated hereinhereunder. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement (i) has been duly and validly authorized, executed and delivered by the Placement Agent Agent, (ii) constitutes legal, valid and constitutes the valid, binding and enforceable agreement obligation of the Placement Agent, except and (iii) subject to applicable bankruptcy, insolvency and other laws affecting the enforceability of creditors' rights generally, is enforceable as to the extent that (i) such enforcement may be subject to the effect of bankruptcyPlacement Agent in accordance with its terms, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and specific performance hereof being limited by general principles of equity (regardless and the enforceability of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions hereof.
(b) The execution, delivery and performance of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for and the consummation by the Placement Agent of the transactions contemplated hereby and by this Agreement the Memorandum will have been obtained not conflict with or are result in the process Placement Agent's breach or violation of being applied for prior any of the terms or provisions of, or constitute a default in any material respect under, (i) any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Closing Date (as defined in Section 4 below).
(h) Any written Placement Agent is a party or oral information provided to prospective purchasers of Securities by authorized representatives of which the Placement Agent or its property is subject, (ii) the Placement Agent's charter or its operating agreement or (iii) any statute, judgment, decree, order, rule or regulation applicable to the Placement Agent Syndicate Members of any court or governmental agency or body having jurisdiction over the Placement Agent.
(c) The Placement Agent is, and at all times through the date of the final sale of a Unit shall remain, duly registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended ("Exchange Act") as a broker-dealer and duly registered as a broker-dealer in those states in which the Placement Agent is required to be so registered in order to carry out the Offering as contemplated by the Memorandum; the Placement Agent is, and at all times through the date of the final sale of a Unit shall remain, a member in good standing of the National Association of Securities Dealers, Inc. ("NASD"); the Placement Agent will not contain reallow discounts or pay commissions or other compensation for participation in the distribution of the Offering in the United States to any broker-dealer which is not a member of the NASD, the Placement Agent shall act as independent contractor, and nothing herein shall constitute the Placement Agent an employee of the Company; the Placement Agent shall not make sales of Units to discretionary accounts.
(d) In connection with the offer, offer for sale and sale of the Units, the Placement Agent (and its representatives and agents) shall conform to and comply with (i) the provisions of the Rules of Fair Practice of the NASD, (ii) applicable provisions of federal law, including without limitation the Securities Act, the Exchange Act and the Rules and Regulations, and (iii) the State Acts and the rules and regulations thereunder, including without limitation those referred to in such letters regarding state securities and "blue sky" matters ("Blue Sky Letters") as are prepared by counsel for the Company and sent to the Placement Agent from time to time, with regard to, among other things, the period during which and conditions under which the Units may be offered, offered for sale and sold in various states; the Placement Agent shall not distribute the Memorandum or otherwise commence the Offering in any jurisdiction without prior confirmation from the Company or its counsel that the Offering may be commenced under applicable securities laws, rules and regulations.
(e) The Placement Agent will use its best efforts to procure subscribers for the Units and will conduct the Offering in compliance with the suitability standards set forth in the Memorandum and with the requirements of Sections 3(b), 4(2) and/or 4(6) of the Securities Act and Rule 506 of Regulation D, as and to the extent applicable to the Offering; accordingly, at all times through the date of the final sale of a Unit, the Placement Agent will have:
(i) not made any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit and not omitted to state a material fact required to be stated therein or necessary to make any statement made not misleading, to the statements thereinextent any representations are made by the Placement Agent concerning the Offering or matters set forth in the Memorandum and Company Data other than those set forth in the Memorandum and Company Data;
(ii) not offered, offered for sale, or sold the Units by means of: (A) any advertisement, article, notice, or other communication mentioning the Units published in light any newspaper, magazine or similar medium or broadcast over television or radio; (B) any seminar or meeting, the attendees of which have been invited by any general solicitation or general advertising; or (C) any letter, circular, notice, or other written communication, unless the communication is accompanied or preceded by the Memorandum;
(iii) prior to the sale of any of the circumstances Units, reasonably believed that each subscriber and his or her purchaser representative, if any, met the suitability and other investor standards set forth in the Memorandum and the Blue Sky Letters, and the Placement Agent will have prepared and maintained, for your benefit and the benefit of the Company, file memoranda and other appropriate records substantiating the foregoing;
(iv) only used sales materials other than the Memorandum and Company Data which have been approved for use in the Offering by the Company, and refrained from providing any such materials to any offeree unless such materials were accompanied or preceded by the Memorandum;
(v) provided each offeree with a copy of the Memorandum;
(vi) promptly distributed any amendment or supplement to the Memorandum provided to the Placement Agent by the Company under which they were madethis Agreement to persons who had previously received a copy of the Memorandum from the Placement Agent and who the Placement Agent believed continued to be interested in the Units and have included such amendment or supplement in all deliveries of the Memorandum made after receipt of any such amendment or supplement; and
(vii) not made any representations on behalf of the Company other than those contained in the Memorandum and the Company Data, not misleadingnor shall the Placement Agent have acted as an agent of the Company or for the Company in any other capacity, except as expressly set forth herein.
Appears in 2 contracts
Samples: Placement Agreement (AeroGrow International, Inc.), Placement Agreement (Wentworth I Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and represents, warrants to, and covenants to and agrees with, with the Company, Company as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company duly organized, incorporated and validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the ActNew York.
(b) This Agreement has been The Placement Agent is, and at the time of each Closing will be, duly registered as a broker/dealer pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and validly authorizeda member in good standing of the NASD, executed and delivered by each of the Placement Agent's representatives is, and at the time of each Closing will be, registered as an agent or salesman of the Placement Agent and constitutes in good standing with the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securitiesNASD.
(c) The Sales of Securities by the Placement Agent's execution and delivery of this Agreement, and Agent will only be made in such jurisdictions in which the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it Placement Agent is a party registered broker-dealer or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation where an applicable to Placement Agentexemption from such registration exists.
(d) As Offers and sales of Securities by the date Placement Agent will be made only in accordance with this Agreement and in compliance with the provisions of Rule 506 of Regulation D (it being understood and agreed that the Placement Agent shall be entitled to rely upon the information and statements provided by the Prospective Investors in the Subscription Agreement and Investor Questionnaires), and the Placement Agent will furnish to each Prospective Investor a copy of the Offering MemorandumDocuments prior to the receipt thereby of any Subscription Agreement from such Prospective Investor.
(e) During the course of the Offering, the information contained in the Offering Memorandum relating to the Placement Agent, if any, Agent and its representatives will not include make any untrue statement of a material fact or omit to state a material fact required to be stated, or necessary in order to make the statements therein, in light of the circumstances under which they were any statement made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which by the Placement Agent is exempt from registration or such registration is its representatives, not otherwise requiredmisleading concerning the Offering or any matters set forth in or contemplated by the Offering Documents (it being understood that the statements made in the Offering Documents are deemed to be made by the Company and not the Placement Agent, except for information set forth therein based upon written information provided by, or on behalf of, the Placement Agent or any of its representatives for inclusion therein).
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by Neither the Placement Agent nor any of its representatives or affiliates, has engaged or will engage, directly or indirectly, in any act or activity that may jeopardize the status of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives Offering and sale of the Placement Agent Securities as an exempt transaction under the Act or Placement Agent Syndicate Members will not contain under all applicable federal and/or state securities or blue sky laws of any untrue statement of a material fact or, when taken together with jurisdiction in which the information set forth in the Offering Memorandum, omit to state a material fact required to Securities may be stated therein offered or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingsold.
Appears in 2 contracts
Samples: Placement Agent Agreement (Data Systems & Software Inc), Placement Agent Agreement (Acorn Factor, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent has been duly formed and is a validly existing as limited liability company duly organized, validly existing and companies in good standing under the laws of the State of Delaware, Delaware with the limited liability company all requisite power and authority authority, all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulating officials and bodies, and all necessary rights, licenses and permits from other parties, to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and, assuming the Fund's and constitutes the validAdvisor's execution hereof, will constitute a valid and binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery Agent is registered as a broker-dealer under Section 15(b) of this Agreementthe Securities Exchange Act of 1934, as amended (the "Exchange Act"), and has and will maintain all licenses and registrations necessary under applicable federal and state law and regulations (including the performance of its obligations hereunder, will not result in a breach or violation of any rules of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument NASD) to which it is a party or provide the services required to be provided by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to the Placement AgentAgent hereunder.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the The Placement Agent, if any, Agent has not and will not include solicit any untrue statement offer to buy or offer to sell Interests in any manner which would be inconsistent with Regulation D under the Securities Act and any other applicable laws and regulations or by any form of a material fact general solicitation or omit to state a material fact necessary advertising, including, but not limited to, any advertisement, article, notice or other communication published in order to make the statements thereinany newspaper, in light of the circumstances under which they were made, not misleadingmagazine or similar medium or broadcast over television or radio or conduct any seminar or meeting whose attendees have been invited by any general solicitation or advertising.
(e) The Placement Agent will furnish each subscriber of Interests that is (i) a broker-dealer duly registered pursuant to the provisions Placement Agent Customer a copy of the Exchange Act; (ii) Memorandum and the subscription documentation prior to such person's admission as a member in good standing Member of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise requiredFund.
(f) Except as The Placement Agent will be disclosed in not externally publish or furnish any offering literature or marketing materials which contain any reference to the Fund or the Advisor, other than the Offering MemorandumMaterial, there are no actions, suits, proceedings or investigations pending or, to without the best prior written approval of the Advisor. No employee of the Placement Agent's knowledge, threatened against Agent or affecting other person acting on behalf of the Placement AgentAgent is authorized to make any representation (oral or otherwise) concerning the Fund, the Advisor or the Interests except those contained in the Memorandum and the other Offering Material.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by The Placement Agent will limit solicitations of Placement Agent Customers to those whom the Placement Agent of reasonably believes are "accredited investors" and "qualified clients" as such terms are defined under the transactions contemplated by this Agreement will have been obtained or are in Securities Act and the process of being applied for prior to the Closing Date (as defined in Section 4 below)Advisers Act, respectively.
(h) Any written The Placement Agent will (1) maintain all records required by law to be kept by it relating to transactions in Interests of the Fund by or oral information provided to prospective purchasers on behalf of Securities Placement Agent Customers and compensation received by authorized representatives of the Placement Agent in respect thereto, and (2) upon request by the Fund or the Advisor in connection with a governmental, court or administrative proceeding, investigation or request, promptly make such records available to such requesting party.
(i) The Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together has adopted procedures to comply with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light requirements of the circumstances under which they were made, not misleadingPatriot Act and the rules and regulations promulgated thereunder.
Appears in 2 contracts
Samples: Placement Agency Agreement (Torrey Us Strategy Partners LLC), Placement Agency Agreement (Torrey International Strategy Partners LLC)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes and, when executed by the Company, will constitute the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 2 contracts
Samples: Placement Agent Agreement (Genethera Inc), Placement Agent Agreement (Genethera Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, with the Company, as of the date hereof, Issuer that:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," registered as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to with the provisions of the Securities and Exchange Act; (ii) Commission, and is a member in good standing of the NASD; and (iii) duly National Association of Securities Dealers, Inc. The Placement Agent is registered as a broker-dealer under or otherwise qualified to sell the applicable statutes and regulations of Shares in each state in which the Placement Agent intends to sell such Shares.
(b) The Placement Agent is not aware nor has it been advised of any pending or threatened action or proceeding, either in any court of competent jurisdiction, before the Securities will be offered and soldExchange Commission or any state securities commission concerning the Placement Agent's activities as a broker or dealer, except such states in which nor, to the knowledge of the Placement Agent, has the Placement Agent is exempt from registration been named as a "cause" in any action or such registration is not otherwise requiredproceeding, any of which it expects to have a material adverse effect upon the Placement Agent's ability to act as agent to the Issuer as contemplated herein.
(fc) Except as will In the event any action or proceeding of the type referred to in paragraph (b) above shall be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending instituted or, to the best knowledge of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizationsAgent at any time prior to the commencement of the Offering, approvals or orders from in the event there shall be filed by or against the Placement Agent in any court pursuant to any federal, state, local or any governmental municipal statute, a petition in bankruptcy or regulatory official insolvency or body necessary for reorganization or for the consummation by appointment of a receiver or trustee of its assets or if the Placement Agent makes an assignment for the benefit of creditors, the Issuer shall have the right on three (3) days' written notice to the Placement Agent to terminate this Agreement without any liability to the Placement Agent of the transactions contemplated by any kind, except for (i) any compensation due or paid as a result of sales consummated; and (ii) those provisions that survive this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingherein.
Appears in 1 contract
Samples: Placement Agent Agreement (Amdl Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, to the Company, Company as of the date hereof, thatfollows:
(a) The Placement Agent is registered as a limited liability company duly organizedbroker-dealer under applicable federal and state law, validly existing and is a member in good standing of NASD and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the laws of services the State of DelawarePlacement Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the limited liability company power and authority to conduct its businessSubscription Offering. FIG Partners, to execute and deliver this AgreementL.L.C. August 31, and to perform the obligations contemplated herein. 2007
(b) The Placement Agent is an "accredited investor," as such term is defined will not provide any service or engage in Regulation D promulgated under any activity, and it will not permit any of its employees, agents, representatives or affiliates (including any Selected Dealer) to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the Actsale of the Shares, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
(bc) The Placement Agent agrees that any employees, agents or representatives of any of the Placement Agent’s affiliates that provide any services to the Company under this Agreement or otherwise in connection with the sale of the Shares will be considered, for purposes of the Placement Agent’s agreements, representations, warranties and obligations under this Agreement to also be employees, agents, or representatives of the Placement Agent.
(d) Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Shares as described in the Offering Documents shall control the conduct of the sale of the Shares, and neither the Placement Agent nor any of its respective employees, agents, representatives or affiliates shall take any action in connection with the sale of the Shares contrary to those terms and conditions.
(e) In connection with or during the course of the sale of the Shares, neither the Placement Agent nor any employee, agent, representative or affiliate of the Placement Agent will make any representation or provide any information to any subscriber or potential subscriber for the Shares other than the representations and information contained in the Offering Documents or other information specifically approved by the Company’s Chief Executive Officer or Chief Financial Officer.
(f) During the course of the sale of the Shares, only the directors or officers of the Company are authorized to receive or accept from a subscriber any subscription and/or payment. In the event that any subscription or payment comes into the possession of the Placement Agent or any of its respective employees, agents, representatives or affiliates, it or he will immediately deliver the same to an officer or director of the Company.
(g) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As valid and binding agreement and obligation of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(gh) All requisite authorizationsIn connection with the sale of the Shares, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of has not and will not:
a. engage in general advertising; FIG Partners, L.L.C. August 31, 2007
b. to its knowledge, solicit a subscription for Shares from an offeree unless the transactions contemplated by this Agreement will have been obtained Company, its officers or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written directors, or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of has a material fact or, when taken together “preexisting relationship” with the information set forth in offeree; or
c. otherwise violate the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make requirements for the statements therein, in light exemption from the registration requirements of the circumstances under which they were made, not misleading.Securities Act provided by Rule 506 of Regulation D.
Appears in 1 contract
Samples: Placement Agency Agreement (Northern Oil & Gas, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, to the Company, as of the date of execution hereof, thatand during the term of the Offering, as follows:
(a) The Placement Agent has been duly formed and is a limited liability company duly organized, validly existing and in good standing corporation under the laws of the State of Delaware, Utah with the limited liability company all requisite power and authority to conduct its business, to execute and deliver enter into this Agreement, Agreement and to perform the carry out its obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Acthereunder.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect laws of bankruptcy, insolvency, reorganizationcreditors’ right and equitable principles and matters of public policy, moratorium, fraudulent conveyance and other similar laws relating to or affecting is binding on the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered Placement Agent in a proceeding in equity or at law), and (ii) accordance with its terms; the indemnification provisions performance of this Agreement may be held to violate public policy (under either federal or state law) in and the context consummation of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, transactions herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default underunder (i) any indenture, its articles mortgage, deed of organization or operating trust, loan agreement, any bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument to which it is a party or by which it is the Placement Agent will be bound, (ii) the Placement Agent’s Articles of Incorporation, as amended, or (iii) any statute or any judgment, decree, order or, to its knowledge, any statuteorder, rule or regulation applicable to of any court or governmental agency or body having jurisdiction over the Placement AgentAgent or its properties; and no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Placement Agent of the transactions on its part contemplated herein.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ec) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended (the “1934 Act; (ii) ”), is a member in good standing of the NASD; FINRA, and (iii) is duly registered or licensed as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and soldBlue Sky Laws, except in such states in which the Placement Agent is exempt from registration or licensing or such registration or licensing is not otherwise required. The Placement Agent agrees to maintain its registration or licenses, or its exemption therefrom, in good standing throughout the term of the Offering of the Shares and agrees to comply with all statutes and other requirements applicable to it with respect to its activities within those jurisdictions.
(fd) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by Neither the Placement Agent of the transactions contemplated by this Agreement will have been obtained nor any director or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives officer of the Placement Agent (nor any other person serving in a similar capacity) or other employee or agent of the Placement Agent Syndicate Members will not contain to be involved in the sale of the Shares, either directly or in a supervisory capacity:
(i) has been convicted within 10 years prior hereto of any untrue statement crime or offense involving the purchase or sale of any security, involving the making of a material fact or, when taken together false filing with the information set forth Securities and Exchange Commission (the “Commission”) or any state security agency (“State Agency”), or arising out of such person's conduct as an underwriter, broker, dealer, municipal securities dealer or investment adviser;
(ii) is subject to any order, judgment or decree of any court of competent jurisdiction temporarily or permanently enjoining or restraining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security, involving the making of a false filing with the Commission or any State Agency or arising out of such person's conduct as an underwriter, broker, dealer, municipal securities dealer or investment adviser;
(iii) is subject to an order of the Commission entered pursuant to Section 15(b)(1)(B) of the 1934 Act; has been found by the Commission to be a cause of any such order which is still in effect; or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) of the Investment Advisers Act of 1940, as amended;
(iv) has been or is suspended or expelled from membership in, or suspended or barred from association with a member of, a national or regional securities dealers association or a national securities exchange or a Canadian securities exchange for conduct inconsistent with just and equitable principles of trade;
(v) is subject to a United States Post Office false representation order, or is subject to any restraining order or preliminary injunction entered under Section 3007 of Title 39, United States Code, with respect to any conduct alleged to constitute postal fraud, or otherwise violated Section 3005 of that Title;
(vi) has been an underwriter or named as an underwriter of any securities (A) covered by any registration statement which is the subject of any proceeding or examination under Section 8A of the 1933 Act, as amended, or is the subject of any refusal order or stop order entered thereunder within five years prior to the date hereof; or (B) covered by any filing which is subject to a pending proceeding under Section 230.258 of the Commission’s rules or any similar rules or to an Order entered thereunder within five years prior to the date hereof;
(vii) is or has been subject to any order, judgment or decree of any governmental agency or administrator, or of any court of competent jurisdiction, revoking or suspending for cause any license, permit or other authority of such person or of any corporation of which he is an officer or director, to engage in the securities business or in the sale of a particular security or temporarily or permanently restraining or enjoining any such person or any corporation of which he is an officer or director from engaging in or continuing any conduct, practice, or employment in connection with the purchase or sale of securities, or convicting such person of any felony or misdemeanor involving a security or any aspect of the securities business, or of theft or of any felony; or
(viii) has taken, nor will take, any action, directly or indirectly, so as to cause the Offering Memorandum, omit to state a material fact required fail to be stated therein or necessary entitled to make the statements therein, in light exemption under Section 4(2) of the circumstances under which they were made, not misleading1933 Act.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants toas follows: It is registered as a broker-dealer with the Commission, and covenants is registered to the extent registration is required with the appropriate governmental agency in each state in which it offers or sells the Shares, and agrees withis a member of the National Association of Securities Dealers, Inc. ("NASD") and will use its best efforts to maintain such registrations, qualifications and memberships throughout the term of the offering. To the knowledge of the Placement Agent, no action or proceeding is pending against the Placement Agent or any of its officers or directors concerning the Placement Agent's activities as a broker or dealer that would affect the Company, as 's offering of the date hereofShares. The Placement Agent will offer the Shares only in those states and in the quantities that are identified in the Blue Sky Memoranda from the Company's counsel to the Placement Agent that the offering of the Shares has been qualified for sale under the applicable state statutes and regulations. The Placement Agent, that:
however, may offer the Shares in other states if (ai) the transaction is exempt from the registration requirements in that state, (ii) the Company's counsel has received notice ten days prior to the proposed sale, and (iii) the Company's counsel does not object within such ten-day period. The Placement Agent, in connection with the offer and sale of the Shares and in the performance of its duties and obligations under this Agreement, agrees to use its best efforts to comply with all applicable federal laws; the laws of the states or other jurisdictions in which the Shares are offered and sole; and the Rules and Regulations of the NASD. The Placement Agent is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, ___________ with the limited liability company all requisite power and authority to conduct its business, to execute and deliver enter into this Agreement, Agreement and to perform the carry out its obligations contemplated hereinhereunder. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes is a valid agreement on the valid, binding and enforceable agreement part of the Placement Agent, except to . Neither the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions execution of this Agreement may be held to violate public policy (under either federal or state law) in nor the context consummation of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, transactions contemplated hereby will not result in a any breach or violation of any of the terms and provisions or conditions of, or constitute a default under, its the articles of organization incorporation or operating agreementbylaws of the Placement Agent or any indenture, any agreement or other instrument to which it the Placement Agent is a party or by which it is bound, or violate any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating directed to the Placement AgentAgent of any court or any federal or state regulatory body or administrative agency having jurisdiction over the Placement Agent or its affiliates. No person acting by, if any, through or under the Placement Agent will not include any untrue statement of a material fact be entitled to receive from the Placement Agent or omit to state a material fact necessary in order to make from the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Company and finder's fees or similar payments. The Placement Agent is (i) a broker-dealer duly registered pursuant will, reasonably promptly after the closing date, supply the Company with all information required from the Placement Agent for the completion of Form SR and such additional information as the Company may reasonably request to be supplied to the provisions securities commissions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best Shares have been qualified for sale. All of the Placement Agent's knowledge, threatened against above representations and warranties shall survive the performance or affecting the Placement Agenttermination of this Agreement.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and represents, warrants to, and covenants and agrees with, with the Company, as of the date hereof, Company that:
(a) The Placement Agent is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State of DelawareIllinois, with the limited liability company corporate power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization incorporation or operating agreementbylaws, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will does not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Securities Exchange ActAct of 1934, as amended ("EXCHANGE ACT"); (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities Shares will be offered and sold, except (A) such states or other jurisdictions in the United States in which the Placement Agent is exempt from registration or such registration is not otherwise requiredrequired and (B) such jurisdictions where the Shares will be offered and sold outside of the United States, in which jurisdictions the Shares will be offered and sold through broker-dealers duly registered under the applicable laws of such jurisdictions who are selected by the Placement Agent to offer and sell the Shares in such jurisdictions. The Placement Agent will maintain all its registrations as well as those of each individual who participates in the offer or sale of the Shares as the Placement Agent's agent or registered representative, in good standing throughout the Offering Period and the Placement Agent will comply with all statutes and other requirements of law applicable to it with respect to its brokerage activities within those jurisdictions. To the extent required by applicable law, any individual who participates in the offer or sale of the Shares as the Placement Agent's agent or registered representative will be duly registered as a registered representative or principal of the Placement Agent pursuant to the provisions of the NASD rules.
(f) Except as will be disclosed Neither Placement Agent nor any of its directors or officers nor any beneficial owner of 10% or more of any class of its equity securities, nor any of their respective affiliates (nor any other person serving in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.a similar capacity):
(gi) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have has been obtained or are in the process of being applied for convicted within ten years prior to the Closing Date (date hereof of any crime or offense involving the purchase or sale of any security, involving the making of a false statement with the Commission, or arising out of such person's conduct as defined in Section 4 below).an underwriter, broker, dealer, municipal securities dealer or investment adviser;
(hii) Any written is subject to any order, judgment or oral information provided decree of any court of competent jurisdiction temporarily or preliminarily enjoining or restraining, or is subject to prospective purchasers any order, judgment, or decree of Securities by authorized representatives any court of competent jurisdiction, entered within five years prior to the date hereof, permanently enjoining or restraining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security, involving the making of a false filing with the Commission or arising out of the Placement Agent conduct of the business of an underwriter, broker, dealer, municipal securities dealer or Placement Agent Syndicate Members will not contain investment adviser;
(iii) is subject to an order of the Commission entered pursuant to Section 15(b), 15B(a), or 15B(c) of the Exchange Act, or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) of the Investment Advisers Act of 1940;
(iv) is suspended or expelled from membership in, or suspended or barred from association with a member of, an exchange registered as a national securities exchange pursuant to Section 6 of the Exchange Act, an association registered as a national securities association under Section 15A of the Exchange Act, or a Canadian securities exchange or association for any untrue act or omission constituting conduct inconsistent with just and equitable principles of trade;
(v) is subject to a United States Postal Service false representation order entered within five years prior to the date hereof; or is subject to a restraining order or preliminary injunction entered under Section 3007 of title 39, United States Code, with respect to any conduct alleged to constitute postal fraud;
(vi) has been or has been named as an underwriter of any securities covered by any registration statement which is the subject of any pending proceeding or examination under Section 8 of the Act, or is the subject of any refusal order or stop order entered thereunder within five years prior to the date hereof;
(vii) has taken or failed to take any other act or are subject to any other order or proceedings, that would make unavailable any limited offering exemption from registration or qualification requirements of federal or state securities laws;
(viii) has filed a registration statement that is the subject of a material fact or, when taken together currently effective stop order entered pursuant to any state's securities law within five years prior to the date hereof;
(ix) has been convicted within five years prior to the date hereof of any felony or misdemeanor in connection with the information set forth offer, purchase or sale of any security or any felony involving fraud or deceit, including but not limited to forgery, embezzlement, obtaining money under false pretenses, larceny or conspiracy to defraud;
(x) is currently subject to any state administrative enforcement order or judgment entered by that state's securities administrator within five years prior to the date hereof or is subject to any state's administrative enforcement order or judgment in the Offering Memorandumwhich fraud or deceit, omit including but not limited to making untrue statements of material facts and omitting to state a material fact required facts, was found and the order or judgment was entered within five years prior to be stated therein the date hereof;
(xi) is subject to any state's administrative enforcement order or necessary judgment that prohibits, denies or revokes the use of any exemption from registration in connection with the offer, purchase or sale of securities; or
(xii) is currently subject to make any order, judgment or decree of any court of competent jurisdiction temporarily or preliminarily restraining or enjoining, or is subject to any order, judgment or decree of any court of competent jurisdiction permanently restraining or enjoining, such party from engaging in or continuing any conduct or practice in connection with the statements therein, in light purchase or sale of any security or involving the circumstances under which they were made, not misleadingmaking of any false filing with the state entered within five years prior to the date hereof.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, thatwarrants:
(a) The All necessary corporate proceedings of Placement Agent have been duly taken to authorize the execution, delivery, and performance of this Agreement by Placement Agent. This Agreement has been duly authorized, executed, and delivered by Placement Agent, is the legal, valid, and binding obligation of Placement Agent, and is enforceable as to Placement Agent in accordance with its terms.
(b) No consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or any court or other tribunal (other than the Securities Exchange Commission and the National Association of Securities Dealers), is required by Placement Agent for the execution, delivery, or performance by the Placement Agent of this Agreement. No consent of any party to any contract, agreement, instrument, lease, license, arrangement, or understanding to which Placement Agent, or to which any of its properties or assets are subject, is required for the execution, delivery, or performance of this Agreement; and the execution, delivery, and performance of this Agreement will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under any such contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any term of the certificate of incorporation (or other charter document) or by-laws of Placement Agent or any of its subsidiaries or violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, or decree binding on Placement Agent to which any of its operations, businesses, properties, or assets are subject.
(c) It is a limited liability company corporation duly organized, organized and validly existing and in good standing under the laws of the State state of Delaware, with the limited liability company power and authority to conduct its business, incorporation; is duly authorized to execute and deliver this Agreement, Agreement and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law)duties hereunder, and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, Agreement and consummation of the performance of its obligations hereunder, transactions herein contemplated will not result in a breach any violation of, or violation of any of the terms and provisions ofbe in conflict with, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it the Placement Agent is a party or by which it is the Placement Agent or its properties are bound, or any judgment, decree, order or, to its knowledge, any statute, rule rule, or regulation applicable to Placement Agent.
(d) As of It shall make no representations concerning the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and soldOffering, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingProspectus.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Omnia Luo and Wentworth that as of the date hereof, thathereof and the Closing Date:
(a) The Placement Agent is a limited liability company has been duly organized, organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware, Delaware with the limited liability company power and authority to conduct its business, to execute (corporate and deliver this Agreement, and other) to perform its obligations under this Agreement and the obligations contemplated herein. The Escrow Documents; the Placement Agent is an "accredited investor," as such term is defined a broker-dealer registered and in Regulation D promulgated good standing under the ActExchange Act and under the securities or Blue Sky laws of each state, where required by applicable law, in which the Units are being offered or sold by the Placement Agent, and the Placement Agent is a member in good standing of the FINRA; the Placement Agent is in possession of and operating in compliance with all authorizations, licenses, permits, consents, certificates, and orders required for the performance of its duties under this Agreement and the Escrow Documents, and the Placement Agent’s performance of its duties hereunder and thereunder will be in compliance with all applicable laws, including state securities and Blue Sky laws.
(b) There are no legal or governmental proceedings pending to which the Placement Agent is a party or of which any of its properties is the subject or, to the Placement Agent’s knowledge, threatened, which, if determined adversely to the Placement Agent, would individually or in the aggregate materially and adversely affect its ability to perform its obligations under this Agreement or the Escrow Documents.
(c) No consent, approval, authorization or order of any court or governmental authority or agency is required for the performance by the Placement Agent of its obligations under this Agreement, except such as may be required by the FINRA or under Regulation D or state securities or Blue Sky laws.
(d) This Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Placement Agent and constitutes the a legal, valid, and binding and enforceable agreement obligation of the Placement AgentAgent enforceable in accordance with its terms, except to the extent that its enforceability is limited by (i) such enforcement may be subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and or other similar laws of general application relating to or affecting the enforcement of creditors’ rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law)generally, and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum laws relating to the Placement Agentavailability of specific performance, if anyinjunctive relief, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light other equitable remedies and except as enforceability of the circumstances under which they were made, not misleadingindemnity and contribution provisions contained in Section 7 hereof may be limited by applicable law or principles of public policy.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; Escrow Documents, when executed and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration delivered by or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best on behalf of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizationsshall constitute a legal, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives valid, and binding obligation of the Placement Agent enforceable in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, or Placement Agent Syndicate Members will not contain any untrue statement other laws of a material fact orgeneral application relating to or affecting enforcement of creditors’ rights generally and (ii) laws relating to the availability of specific performance, when taken together with the information set forth in the Offering Memoranduminjunctive relief, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingother equitable remedies.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company corporate power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Samples: Placement Agent Agreement (Rush Financial Technologies Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants to the Company and agrees with, the Company, as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the is a valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(cb) The Placement Agent's Neither the execution and delivery of this Agreement, and the performance and consummation of its obligations hereunder, the transactions contemplated in this Agreement will not result in a any breach or violation of any of the terms and provisions conditions of, or constitute a default under, its articles the Placement Agent's Articles of organization Incorporation or operating Bylaws, or any indenture, agreement, any agreement or instrument to by which it the Placement Agent is a party or by which it is bound, violate any order directed to the Placement Agent of any court or any judgment, decree, order or, to federal or state regulatory body or administrative agency having jurisdiction over the Placement Agent or its knowledge, any statute, rule or regulation applicable to Placement Agentaffiliates.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ec) The Placement Agent represents that it is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the National Association of Securities Dealers, Inc. ("NASD; ") and (iii) duly registered as a broker-dealer with the Commission, or that it is a foreign broker-dealer not eligible for membership under Section 1 of the Bylaws of the NASD who agrees to make no sales within the United States, its territories or possessions or to persons who are nationals thereof or residents therein. The Placement Agent's attention is called to the following: (a) Section 2700 of the NASD Conduct Rules; (b) Section 10(b) of the Exchange Act and Rule 10b-9 of the general rules and regulations promulgated under the applicable statutes Exchange Act; (c) Section 15 of the Exchange Act and Rule 15c2-4 of the general rules and regulations promulgated under the Exchange Act; and (d) Rule 15c2-8 of each state in which the general rules and regulations promulgated under the Exchange Act and Securities will Act Release No. 4968 requiring the distribution of a Preliminary Prospects to all persons reasonably expected to be offered and sold, except such states in which purchasers of Units from the Placement Agent at least 48 hours prior to the time it expects to mail confirmations of purchase. The Placement Agent, if a member of the NASD, by signing this Agreement, acknowledges that its is exempt familiar with the cited law, rules and releases and agrees that it will not directly and/or indirectly violate any provisions of applicable law in connection with its participation in the distribution of the Units.
(d) The Placement Agent will not, until advised by the Company in writing or by wire that the offering of Units has been distributed and closed, bid for or purchase Shares or Warrants in the open market or otherwise make a market in the Shares or Warrants or otherwise attempt to induce others to purchase Shares or Warrants in the open market.
(e) Neither the Placement Agent nor its directors or officers (or any other person serving in a similar capacity):
(1) Has been convicted within ten years prior hereto of any crime or offense involving the purchase or sale, or any conduct or practice in connection with the purchase or sale, of any security; involving the making of a false statement with the Commission; or has been convicted or charged with a crime or offense arising out of the Placement Agent engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser.
(2) Is subject to any order, judgment, or decree of any court of competent jurisdiction temporarily or permanently enjoining or restraining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security; involving the making of a false statement with the Commission; or has been convicted or charged with a crime or offense arising out of such person engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser.
(3) Is subject to an order of the Commission entered pursuant to Section 15(b), 15B(a) or 15B(c) of the Exchange Act; has been found by the Commission to be a cause of any such order which is still in effect; or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) of the Investment Advisers Act of 1940.
(4) Has been and is suspended or expelled from membership in a national or regional securities dealers association or a national securities exchange or a Canadian securities exchange for conduct inconsistent with just and equitable principles of trade.
(5) Is subject to a United States Postal Service fraud order or is subject to any restraining order or preliminary injunction entered under Section 3007 of Title 30, United States Code, with respect to any conduct alleged to constitute postal fraud.
(6) Has been an underwriter or named as an underwriter of any securities covered by any registration statement which is the subject of any proceeding or such registration examination under Section 8 of the Securities Act, or is not otherwise requiredthe subject of any refusal order or stop order entered thereunder within five (5) years prior to the date hereof.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of To the Placement Agent's knowledge, threatened no action or proceeding is pending against it or affecting any of its officers or directors concerning its activities as a broker or dealer that would affect the Placement AgentCompany's offering of the Units.
(g) All requisite authorizations, approvals or orders The Placement Agent will offer the Units only in those states and in the quantities that are identified in the Blue Sky Memorandum from any court or any governmental or regulatory official or body necessary for the consummation by Company's counsel to the Placement Agent that the offering of the transactions contemplated by this Agreement will have Units has been obtained or are in the process of being applied qualified for prior to the Closing Date (as defined in Section 4 below)sale under applicable state statutes and regulations.
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives The Placement Agent, in connection with the offer and sale of the Units, and in the performance of its duties and obligations under this Agreement, agrees to use its best efforts to comply with all applicable federal laws, the laws of the states or other jurisdictions in which the Units are offered and sold, and the Rules and Regulations of the NASD.
(i) The Placement Agent will not make any offer or sale of Units unless the offer or sale is made in compliance with the Securities Act, the Conduct Rules of the NASD, and the applicable securities or Blue Sky laws of jurisdictions in which offers or sales are made, and the rules and regulations thereunder. The Placement Agent Syndicate Members agrees that it will not contain offer or sell Units to any untrue statement subscriber unless it has reasonable grounds to believe that the investment in Units is suitable for the subscriber.
(j) The Placement Agent will, reasonably promptly after the closing of a material fact orthe offering of the Units, when taken together supply the Company with all information as the information set forth in the Offering Memorandum, omit to state a material fact required Company may reasonably request to be stated therein or necessary supplied to make the statements therein, securities commission of such states in light which the Units have been qualified for sale. All of the circumstances under which they were made, not misleadingabove representations and warranties shall survive the performance or termination of this Agreement.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents represents, covenants and warrants to, and covenants and agrees with, to the Company, as of the date hereof, thatfollows:
(a) The Placement Agent is registered as a limited liability company duly organizedbroker-dealer under applicable federal and state law, validly existing and is a member in good standing of FINRA and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the laws of services the State of DelawarePlacement Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the ActOffering.
(b) The Placement Agent will not provide any service or engage in any activity, and it will use its commercially reasonable efforts to not permit any of its employees, agents, representatives or to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the sale of the Shares, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
(c) Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Shares as described in the Offering Materials shall control the conduct of the sale of the Shares, and the Placement Agent or any of its respective employees, agents, representatives or Affiliates shall not take any action in connection with the sale of the Shares contrary to those terms and conditions.
(d) In connection with or during the course of the sale of the Shares, the Placement Agent or any employee, agent, representative or Affiliate of the Placement Agent will not make any representation or provide any information to any Purchaser or potential Purchaser other than the representations and information contained in the Offering Materials or other information specifically approved by the Company.
(e) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As valid and binding agreement and obligation of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(gf) All requisite authorizationsIn connection with the sale of the Shares, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of the transactions contemplated by this Agreement has not and will have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).not:
(hi) Any written engage in general advertising;
(ii) to its knowledge, solicit an investment from an offeree unless the Company, its officers or oral information provided to prospective purchasers of Securities by authorized representatives of directors, or the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of has a material fact or, when taken together “preexisting relationship” with the information set forth in offeree; or
(iii) otherwise violate the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make requirements for the statements therein, in light exemption from the registration requirements of the circumstances under which they were made, not misleading.1933 Act provided by Rule 506 of Regulation D.
Appears in 1 contract
Samples: Placement Agent Agreement (OptimumBank Holdings, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Company as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(bi) This Agreement has have been duly and validly authorized, executed and delivered by the Placement Agent Agent, are the legal, valid and constitutes the valid, binding and enforceable agreement obligations of the Placement Agent, except Agent and are enforceable as to the extent that Placement Agent in accordance with their respective terms (i) such enforcement may be subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance insolvency and other similar laws relating to or affecting the enforceability of creditors' rights of creditors generally and to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at lawequitable principles), and .
(ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the The Placement Agent will not offer or sale sell the Securities to any investor which the Placement Agent did not have reasonable grounds to believe and did not believe, was an "accredited investor."
(iii) The Placement Agent will not offer or sell the Securities by means of securitiesany form of general solicitation or general advertising, including, without limitation, the following:
(1) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and
(2) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(eiv) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly NASD or is a registered as a broker-dealer representative thereof, is licensed under the applicable Exchange Act, and, if required, under the laws of all jurisdictions in which it will offer the Securities.
(v) Neither the Placement Agent nor any partner, officer or director of the Placement Agent:
(1) Is currently subject to any administrative order or judgment in any state which prohibits the use of any exemption from registration in connection with the purchase or sale of securities;
(2) Is subject to any order, judgment or decree of any court or regulatory authority of competent jurisdiction temporarily or preliminarily restraining or enjoining, or is subject to any order, judgment or decree of any court or regulatory authority of competent jurisdiction, entered within the last five years permanently restraining or enjoining, such person from engaging in or continuing any conduct or practice (including making use of any exemption) in connection with the purchase or sale of any security or commodity or involving the making of any false filing with any state relating to any security or offering or arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser; or which restrains or enjoins such person from activities subject to federal or state statutes designed to protect consumers against unlawful or deceptive practices involving insurance, commodities or commodity futures, real estate, franchise, business opportunities, consumer goods, or other goods and regulations services;
(3) Has been convicted of, or has pleaded nolo contendere to, within the past ten years, any felony or misdemeanor in connection with the purchase or sale of each any security or commodity, involving the making of a false filing relating to any security or offering; arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser; or involving fraud, deceit, racketeering, or intentional wrongdoing, including, without limitation, forgery, embezzlement, obtaining money under false pretenses, larceny, or conspiracy to defraud;
(4) Is currently subject to any state administrative enforcement order or judgment entered by that state's securities administrator within the past five years or is subject to any state's administrative enforcement order or judgment, entered within the past five years, in which fraud or deceit, including, without limitation, making untrue statements of material facts and omitting to state material facts, was found; or, if such an order or judgment was entered, the person subject to such order or judgment is licensed or registered to conduct securities-related business in the state in which the Securities will be offered and sold, except administrative order or judgment was entered against such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.person;
(f5) Except Is suspended or expelled from membership in, or suspended or barred from association with a member of an exchange registered as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, a national securities exchange pursuant to the best Section 6 of the Placement Agent's knowledgeExchange Act, threatened against an association registered as a national securities association under Section 15A of the Exchange Act, or affecting the Placement Agent.a Canadian securities exchange or association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade;
(g6) All requisite authorizationsIs subject to a United States Postal Service false representation order entered under section 3005 of title 39, approvals United States Code, within the past five years; or orders from any court is subject to a restraining order or any governmental or regulatory official or body necessary for the consummation by the Placement Agent preliminary injunction entered under section 3007 of the transactions contemplated by this Agreement will title 39, United States Code, with respect to conduct alleged to have been obtained or are in the process violated section 3005 of being applied for prior to the Closing Date (as defined in Section 4 below).title 39, United States Code; or
(h7) Any written Has been the underwriter or oral information provided to prospective purchasers named as the underwriter of Securities any securities covered by authorized representatives any registration statement or offering circular which is the subject of any pending proceeding or examination under the Placement Agent Act or Placement Agent Syndicate Members will not contain is the subject of any untrue statement of a material fact or, when taken together with refusal order or stop order entered thereunder or under any state's laws within the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingpast five years.
Appears in 1 contract
Samples: Sales Agency Agreement (Evercel Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants to the Company and agrees with, the Company, as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the is a valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(cb) The Placement Agent's Neither the execution and delivery of this Agreement, and the performance and consummation of its obligations hereunder, the transactions contemplated in this Agreement will not result in a any breach or violation of any of the terms and provisions conditions of, or constitute a default under, its articles the Placement Agent's Articles of organization Incorporation or operating Bylaws, or any indenture, agreement, any agreement or instrument to by which it the Placement Agent is a party or by which it is bound, violate any order directed to the Placement Agent of any court or any judgment, decree, order or, to federal or state regulatory body or administrative agency having jurisdiction over the Placement Agent or its knowledge, any statute, rule or regulation applicable to Placement Agentaffiliates.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ec) The Placement Agent represents that it is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the National Association of Securities Dealers, Inc. ("NASD; ") and (iii) duly registered as a broker-dealer with the Commission, or that it is a foreign broker-dealer not eligible for membership under Section 1 of the Bylaws of the NASD who agrees to make no sales within the United States, its territories or possessions or to persons who are nationals thereof or residents therein. The Placement Agent's attention is called to the following: (a) Article III, Section 1 of the Rules of Fair Practice of the NASD and the interpretations of said Section promulgated by the Board of Governors of the NASD; (b) Section 10(b) of the Exchange Act and Rule 10b-9 of the general rules and regulations promulgated under the applicable statutes Exchange Act; (c) Section 15 of the Exchange Act and Rule 15c2-4 of the general rules and regulations promulgated under the Exchange Act; and (d) Rule 15c2-8 of each state in which the general rules and regulations promulgated under the Exchange Act and Securities will Act Release No. 4968 requiring the distribution of a Preliminary Prospects to all persons reasonably expected to be offered and sold, except such states in which purchasers of Units from the Placement Agent at least 48 hours prior to the time it expects to mail confirmations of purchase. The Placement Agent, if a member of the NASD, by signing this Agreement, acknowledges that its is exempt familiar with the cited law, rules and releases and agrees that it will not directly and/or indirectly violate any provisions of applicable law in connection with its participation in the distribution of the Units.
(d) The Placement Agent will not, until advised by the Company in writing or by wire that the offering of Units has been distributed and closed, bid for or purchase Shares or Warrants in the open market or otherwise make a market in the Shares or Warrants or otherwise attempt to induce others to purchase Shares or Warrants in the open market.
(e) Neither the Placement Agent nor its directors or officers (or any other person serving in a similar capacity):
(1) Has been convicted within ten years prior hereto of any crime or offense involving the purchase or sale, or any conduct or practice in connection with the purchase or sale, of any security; involving the making of a false statement with the Commission; or has been convicted or charged with a crime or offense arising out of the Placement Agent engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser.
(2) Is subject to any order, judgment, or decree of any court of competent jurisdiction temporarily or permanently enjoining or restraining such person from engaging in or continuing any conduct or practice in connection with the purchase or sale of any security; involving the making of a false statement with the Commission; or has been convicted or charged with a crime or offense arising out of such person engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser.
(3) Is subject to an order of the Commission entered pursuant to Section 15(b), 15B(a) or 15B(c) of the Exchange Act; has been found by the Commission to be a cause of any such order which is still in effect; or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) of the Investment Advisers Act of 1940.
(4) Has been and is suspended or expelled from membership in a national or regional securities dealers association or a national securities exchange or a Canadian securities exchange for conduct inconsistent with just and equitable principles of trade.
(5) Is subject to a United States Postal Service fraud order or is subject to any restraining order or preliminary injunction entered under Section 3007 of Title 30, United States Code, with respect to any conduct alleged to constitute postal fraud.
(6) Has been an underwriter or named as an underwriter of any securities covered by any registration statement which is the subject of any proceeding or such registration examination under Section 8 of the Securities Act, or is not otherwise requiredthe subject of any refusal order or stop order entered thereunder within five (5) years prior to the date hereof.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of To the Placement Agent's knowledge, threatened no action or proceeding is pending against it or affecting any of its officers or directors concerning its activities as a broker or dealer that would affect the Placement AgentCompany's offering of the Units.
(g) All requisite authorizations, approvals or orders The Placement Agent will offer the Units only in those states and in the quantities that are identified in the Blue Sky Memorandum from any court or any governmental or regulatory official or body necessary for the consummation by Company's counsel to the Placement Agent that the offering of the transactions contemplated by this Agreement will have Units has been obtained or are in the process of being applied qualified for prior to the Closing Date (as defined in Section 4 below)sale under applicable state statutes and regulations.
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives The Placement Agent, in connection with the offer and sale of the Units, and in the performance of its duties and obligations under this Agreement, agrees to use its best efforts to comply with all applicable federal laws, the laws of the states or other jurisdictions in which the Units are offered and sold, and the Rules and Regulations of the NASD.
(i) The Placement Agent will not make any offer or sale of Units unless the offer or sale is made in compliance with the Securities Act, the Rules of Fair Practice of the NASD, and the applicable securities or Blue Sky laws of jurisdictions in which offers or sales are made, and the rules and regulations thereunder. The Placement Agent Syndicate Members agrees that it will not contain offer or sell Units to any untrue statement subscriber unless it has reasonable grounds to believe that the investment in Units is suitable for the subscriber.
(j) The Placement Agent will, reasonably promptly after the closing of a material fact orthe offering of the Units, when taken together supply the Company with all information as the information set forth in the Offering Memorandum, omit to state a material fact required Company may reasonably request to be stated therein or necessary supplied to make the statements therein, securities commission of such states in light which the Units have been qualified for sale. All of the circumstances under which they were made, not misleadingabove representations and warranties shall survive the performance or termination of this Agreement.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent is a limited liability company member in good standing of the National Association of Securities Dealers, Inc. ("NASD") and registered as a broker/dealer with the Securities and Exchange Commission, and has been duly organized, incorporated and is validly existing and as a corporation in good standing under the laws of the State of Delaware, New York with the limited liability company corporate power and authority to own its properties and conduct is business.
(b) The Placement Agent will, in connection with the offer and sale of the Certificates and in the performance of its businessduties and obligations under this Agreement, comply with the applicable requirements of the Act, the Securities Exchange Act of 1934, the State Acts of states in which the Certificates are offered and sold, the rules and regulations of the NASD, and any applicable rules and regulations issued under said Acts, regulations and laws.
(c) The undersigned has the power and authority to execute and deliver this Agreement, ; and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, when so executed and delivered by the Placement Agent shall be a legal, valid and constitutes the valid, binding and enforceable agreement obligation of the Placement Agent, enforceable against the Placement Agent in accordance with its terms, except to as the extent that (i) such enforcement same may be subject to the effect of limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and creditors, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement except as rights to indemnify and contribution hereunder may be held to violate public policy (under either federal or state limited by applicable law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained Except as disclosed in the Offering Memorandum relating to the Placement AgentRegistration Statement and Prospectus, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are has no actions, suits, proceedings or investigations pending or, to the best knowledge of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation existing violation by the Placement Agent of the transactions contemplated by this Agreement will have been obtained any federal or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact orstate law, when taken together with the information set forth in the Offering Memorandumstatute, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.ordinance,
Appears in 1 contract
Samples: Placement Agent Agreement (Capital Resource Group LLC)
Representations and Warranties of the Placement Agent. The ----------------------------------------------------- Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Company and each other as of the date hereof, thatto themselves only as follows:
(ai) The Placement Agent will not offer or sell any Shares and accompanying Warrants to any investor which the Placement Agent does not have reasonable grounds to believe is an "accredited investor."
(ii) The Placement Agent will not offer or sell any Shares and accompanying Warrants by means of any form of general solicitation or general advertising, including, without limitation, the following:
(A) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and
(B) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(iii) The Placement Agent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with the limited liability company power and authority to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; National Association of Securities Dealers, Inc. or a registered representative thereof.
(iv) The Placement Agent will (A) offer and (iii) duly registered as a broker-dealer under sell the applicable statutes Shares and regulations of each state accompanying Warrants only in jurisdictions in which the Securities will be offered Shares and soldaccompanying Warrants have been registered or are exempt from registration, except such states and (B) not offer or sell Shares and accompanying Warrants in any jurisdiction in which the Placement Agent is exempt from registration or such registration is not otherwise requiredqualified to do so.
(fv) Except as will be disclosed in This Agreement has been duly authorized by all necessary action on the Offering Memorandumpart of the Placement Agent and constitutes the legal, there are no actions, suits, proceedings or investigations pending or, to the best valid and binding obligations of the Placement Agent's knowledge, threatened enforceable against or it in accordance with the terms hereof (subject to applicable bankruptcy, insolvency and other laws affecting the Placement Agent.
(g) All requisite authorizationsenforceability of creditors' rights generally and to general equitable principles). The execution, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation delivery and performance by the Placement Agent of the transactions contemplated by this Agreement its obligations hereunder will have been obtained not result in a violation or are in the process material breach of being applied for prior any agreement to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of which the Placement Agent is a party or any law, rule, regulation, order, judgment or decree binding on the Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingAgent.
Appears in 1 contract
Samples: Sales Agency Agreement (Cardima Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent is a limited liability company member in good standing of the National Association of Securities Dealers, Inc. ("NASD") and registered as a broker/dealer with the Securities and Exchange Commission, and has been duly organized, incorporated and is validly existing and as a corporation in good standing under the laws of the State of Delaware, New York with the limited liability company corporate power and authority to own its properties and conduct is business.
(b) The Placement Agent will, in connection with the offer and sale of the Certificates and in the performance of its businessduties and obligations under this Agreement, comply with the applicable requirements of the Act, the Securities Exchange Act of 1934, the State Acts of states in which the Certificates are offered and sold, the rules and regulations of the NASD, and any applicable rules and regulations issued under said Acts, regulations and laws.
(c) The undersigned has the power and authority to execute and deliver this Agreement, ; and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, when so executed and delivered by the Placement Agent shall be a legal, valid and constitutes the valid, binding and enforceable agreement obligation of the Placement Agent, enforceable against the Placement Agent in accordance with its terms, except to as the extent that (i) such enforcement same may be subject to the effect of limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and creditors, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement except as rights to indemnify and contribution hereunder may be held to violate public policy (under either federal or state limited by applicable law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained Except as disclosed in the Offering Memorandum relating to the Placement AgentRegistration Statement and Prospectus, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are has no actions, suits, proceedings or investigations pending or, to the best knowledge of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation existing violation by the Placement Agent of the transactions contemplated by this Agreement will any federal or state law, statute, ordinance, regulation, or order that would have been obtained or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below).
(h) Any written or oral information provided to prospective purchasers of Securities by authorized representatives of the Placement Agent or Placement Agent Syndicate Members will not contain any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.a
Appears in 1 contract
Samples: Placement Agent Agreement (Capital Resource Group LLC)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Company as of the date hereof, thatfollows:
(a) The Placement Agent is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the State of Delawarejurisdiction in which it was formed, with the limited liability company all requisite power and authority to conduct its business, to execute and deliver enter into this Agreement, Agreement and to perform the carry out its obligations contemplated hereinhereunder. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement (i) has been duly and validly authorized, executed and delivered by the Placement Agent Agent, (ii) constitutes a legal, valid and constitutes the valid, binding and enforceable agreement obligation of the Placement Agent, except and (iii) subject to applicable bankruptcy, insolvency and other laws affecting the enforceability of creditors' rights generally, is enforceable as to the extent that (i) such enforcement may be subject to the effect of bankruptcyPlacement Agent in accordance with its terms, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and specific performance hereof being limited by general principles of equity (regardless and the enforceability of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions hereof.
(b) The execution, delivery and performance of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; and (iii) duly registered as a broker-dealer under the applicable statutes and regulations of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best of the Placement Agent's knowledge, threatened against or affecting the Placement Agent.
(g) All requisite authorizations, approvals or orders from any court or any governmental or regulatory official or body necessary for and the consummation by the Placement Agent of the transactions contemplated hereby and by this Agreement the Memorandum will have been obtained not conflict with or are result in the process Placement Agent’s breach or violation of being applied for prior any of the terms or provisions of, or constitute a default in any material respect under, (i) any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Closing Date (as defined in Section 4 below).
(h) Any written Placement Agent is a party or oral information provided to prospective purchasers of Securities by authorized representatives of which the Placement Agent or its property is subject, (ii) the Placement Agent’s charter or its operating agreement or (iii) any statute, judgment, decree, order, rule or regulation applicable to the Placement Agent Syndicate Members of any court or governmental agency or body having jurisdiction over the Placement Agent.
(c) The Placement Agent is, and at all times through the date of the final sale of the Series A Preferred Stock shall remain, duly registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended (“Exchange Act”) as a broker-dealer and duly registered as a broker-dealer in those states in which the Placement Agent is required to be so registered in order to carry out the Offering as contemplated by the Memorandum; the Placement Agent is, and at all times through the date of the final sale of a Unit shall remain, a member in good standing of FINRA; the Placement Agent will not contain re-allow discounts or pay commissions or other compensation for participation in the distribution of the Offering in the United States to any broker-dealer which is not a member of the FINRA; the Placement Agent shall act as an independent contractor, and nothing herein shall constitute the Placement Agent an employee of the Company.
(d) In connection with the offer, offer for sale and sale of the Series A Preferred Stock, the Placement Agent (and its representatives and Participating Dealers) shall conform to and comply with (i) the provisions of the Rules of Fair Practice of FINRA, (ii) applicable provisions of federal law, including without limitation the Securities Act, the Exchange Act and the Rules and Regulations, (iii) anti-money laundering regulations applicable under the USA PATRIOT Act or foreign jurisdictions, and (iv) the State Acts and the rules and regulations thereunder, and counsel for the Company shall make all such filings as are required pursuant to state securities and “blue sky” laws, and shall send to the Placement Agent from time to time copies thereof, during the period during which the Series A Preferred Stock may be offered, offered for sale and sold in various states.
(e) The Placement Agent will use its best efforts to procure subscribers for the Series A Preferred Stock and will conduct the Offering in compliance with the suitability standards set forth in the Memorandum and with the requirements of Section 4(2) of the Securities Act, Rule 506 of Regulation D and/or Regulation S, as and to the extent applicable to the Offering; accordingly, at all times through the date of the final sale of the Series A Preferred Stock, the Placement Agent will have:
(i) not made any untrue statement of a material fact or, when taken together with the information set forth in the Offering Memorandum, omit and not omitted to state a material fact required to be stated therein or necessary to make any statement made not misleading, to the statements thereinextent any representations are made by the Placement Agent concerning the Offering or matters set forth in the Memorandum and Company Data other than those set forth in the Memorandum and Company Data;
(ii) not offered, offered for sale, or sold the Series A Preferred Stock by means of any form of general solicitation or general advertising, including, but not limited to: (A) any advertisement, article, notice, or other communication mentioning the Series A Preferred Stock published in light any newspaper, magazine or similar medium or broadcast over television or radio; (B) any seminar or meeting, the attendees of which have been invited by any general solicitation or general advertising; or (C) any letter, circular, notice, or other written communication, unless the communication is accompanied or preceded by the Memorandum;
(iii) prior to the sale of any of the circumstances Series A Preferred Stock, reasonably believed that each subscriber met the suitability and other investor standards set forth in the Memorandum and the state securities or “blue sky” laws of the applicable jurisdictions, and the Placement Agent will have prepared and maintained, for its benefit and the benefit of the Company, file memoranda and other appropriate records substantiating the foregoing;
(iv) only used sales materials which have been approved for use in the Offering by the Company, and refrained from providing any such materials to any offeree unless such materials were accompanied or preceded by the Memorandum;
(v) provided each offeree, either directly or through a Participating Dealer, with a copy of the Memorandum;
(vi) promptly distributed any amendment or supplement to the Memorandum provided to the Placement Agent by the Company under which they were madethis Agreement to persons who had previously received a copy of the Memorandum from the Placement Agent and who the Placement Agent believed continued to be interested in the Series A Preferred Stock and have included such amendment or supplement in all deliveries of the Memorandum made after receipt of any such amendment or supplement; and
(vii) not made any representations on behalf of the Company other than those contained in the Company's approved subscription agreement, not misleadingnor shall the Placement Agent have acted as an agent of the Company or for the Company in any other capacity, except as expressly set forth herein.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, Ever Leader and Applied Spectrum that as of the date hereof, thathereof and the Closing Date:
(a) The Placement Agent is a limited liability company has been duly organized, organized and validly existing and in good standing as a limited liability company under the laws of the State of Delaware, Delaware with the limited liability company power and authority to conduct its business, to execute (corporate and deliver this Agreement, and other) to perform its obligations under this Agreement and the obligations contemplated herein. The Escrow Documentst; the Placement Agent is an "accredited investor," as such term is defined a broker-dealer registered and in Regulation D promulgated good standing under the Act.
(b) This Agreement has been duly Exchange Act and validly authorizedunder the securities or Blue Sky laws of each state, executed and delivered where required by applicable law, in which the Placement Agent and constitutes the valid, binding and enforceable agreement of Units are being offered or sold by the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution and delivery of this Agreement, and the performance of its obligations hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of the date of the Offering Memorandum, the information contained in the Offering Memorandum relating to the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to the provisions of the Exchange Act; (ii) a member in good standing of the NASD; the Placement Agent is in possession of and (iii) duly registered as a broker-dealer operating in compliance with all authorizations, licenses, permits, consents, certificates, and orders required for the performance of its duties under this Agreement and the applicable statutes Escrow Documents, and regulations the Placement Agent's performance of each state in which the Securities its duties hereunder and thereunder will be offered in compliance with all applicable laws, including state securities and sold, except such states in Blue Sky laws.
(b) There are no legal or governmental proceedings pending to which the Placement Agent is exempt from registration a party or such registration of which any of its properties is not otherwise required.
(f) Except as will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending subject or, to the best of the Placement Agent's knowledge, threatened against or affecting threatened, which, if determined adversely to the Placement Agent, would individually or in the aggregate materially and adversely affect its ability to perform its obligations under this Agreement or the Escrow Documents.
(gc) All requisite authorizationsNo consent, approvals approval, authorization or orders from order of any court or any governmental authority or regulatory official or body necessary agency is required for the consummation performance by the Placement Agent of its obligations under this Agreement, except such as may be required by the transactions contemplated by this Agreement will have been obtained NASD or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below)under Regulation D or state securities or Blue Sky laws.
(hd) Any written This Agreement has been duly and validly executed and delivered by or oral information provided to prospective purchasers of Securities by authorized representatives on behalf of the Placement Agent or and constitutes a legal, valid, and binding obligation of the Placement Agent Syndicate Members will not contain any untrue statement enforceable in accordance with its terms, except to the extent that its enforceability is limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of a material fact orgeneral application relating to or affecting the enforcement of creditors' rights generally, and (ii) laws relating to the availability of specific performance, injunctive relief, or other equitable remedies and except as enforceability of the indemnity and contribution provisions contained in Section 7 hereof may be limited by applicable law or principles of public policy.
(e) The Escrow Documents, when taken together with the information set forth in the Offering Memorandum, omit to state a material fact required to be stated therein executed and delivered by or necessary to make the statements therein, in light on behalf of the circumstances under which they were madePlacement Agent, not misleadingshall constitute a legal, valid, and binding obligation of the Placement Agent enforceable in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, or other laws of general application relating to or affecting enforcement of creditors' rights generally and (ii) laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
Appears in 1 contract
Samples: Placement Agreement (Applied Spectrum Technologies Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants and agrees with, the Company, as of the date hereof, that:
(a) The Placement Agent has been duly formed and is a limited liability company duly organized, validly existing and as a corporation in good standing under the laws of the State state of Delaware, __________________ with the limited liability company all requisite power and authority authority, all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulating officials and bodies, and all necessary rights, licenses and permits from other parties, to conduct its business, to execute and deliver this Agreement, and to perform the obligations contemplated herein. The Placement Agent is an "accredited investor," as such term is defined in Regulation D promulgated under the Act.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and, assuming execution hereof by the Principal Underwriter, will constitute a valid and constitutes the valid, binding and enforceable agreement of the Placement Agent, except to the extent that (i) such enforcement may be subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting the rights of creditors generally and general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law), and (ii) the indemnification provisions of this Agreement may be held to violate public policy (under either federal or state law) in the context of the offer or sale of securities.
(c) The Placement Agent's execution Agent is a broker/dealer in the state of ________________ and delivery has and will maintain all licenses and registrations necessary under applicable law and regulations to provide the services required to be provided by the Placement Agent hereunder. The Placement Agent is registered pursuant to the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as a broker dealer and is a member of FINRA and duly registered in the relevant states in order to carry out the offering of Shares contemplated by this Agreement, . The Placement Agent has and will maintain all licenses and registrations for all associated persons necessary under applicable law and regulations to provide the performance of its obligations services required to be provided by it hereunder, will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, its articles of organization or operating agreement, any agreement or instrument to which it is a party or by which it is bound, or any judgment, decree, order or, to its knowledge, any statute, rule or regulation applicable to Placement Agent.
(d) As of The Placement Agent has not and will not solicit any offer to buy or offer to sell Shares in any manner which would be inconsistent with applicable laws and regulations or with the date of procedures for solicitation contemplated by the Offering MemorandumRegistration Statement. The Placement Agent has not and will not solicit any offer to buy or sell Shares in any jurisdiction in which to and its personnel are not duly licensed to do so. Additionally, the information contained in Placement Agent will appropriately disclose to each subscriber of Shares that is a Placement Agent Customer the Offering Memorandum relating to compensation the Placement Agent, if any, will not include any untrue statement of a material fact or omit to state a material fact necessary Agent receives for its services in order to make the statements therein, in light of the circumstances under which they were made, not misleadingselling Shares.
(e) The Placement Agent is (i) a broker-dealer duly registered pursuant to shall not offer Shares under any of the provisions of this Agreement and no orders for the purchase or sale of Shares hereunder shall be accepted if and so long as the effectiveness of the registration statement then in effect or any necessary amendments thereto shall be suspended under any of the provisions of the Exchange Act; (ii) a member in good standing of the NASD; Securities Act or if and (iii) duly registered so long as a broker-dealer under the applicable statutes and regulations current prospectus as required by Section 10(b)(2) of each state in which the Securities will be offered and sold, except such states in which the Placement Agent is exempt from registration or such registration said Act is not otherwise requiredon file with the Commission; provided, however, that nothing contained in this Agreement shall in any way restrict or have an application to or bearing upon the Fund’s right to repurchase Shares from a Shareholder pursuant to any regular or special Tender Offer.
(f) Except as The Placement Agent will be disclosed in the Offering Memorandum, there are no actions, suits, proceedings or investigations pending or, to the best furnish each subscriber of Shares that is a Placement Agent Customer a copy of the Placement Agent's knowledge, threatened against or affecting Registration Statement and the Placement Agentsubscription documentation prior to such person’s admission as a Shareholder of the Fund.
(g) All requisite authorizationsWith respect to state blue sky requirements applicable to the offer and sale of Shares, approvals or orders from any court or any governmental or regulatory official or body necessary for the consummation by the Placement Agent of agrees to cooperate with the transactions contemplated by this Agreement will have been obtained Principal Underwriter as reasonably necessary to effectuate any required or are in the process of being applied for prior to the Closing Date (as defined in Section 4 below)advisable filings.
(h) Any written or oral information The Placement Agent has adopted suitability and other compliance policies and procedures with respect to offerings to investors subject to minimum eligibility qualifications, and will do all that is reasonable in the industry to ensure that such policies and procedures remain current with all applicable regulatory requirements and are enforced during the term of this Agreement. A copy of the Placement Agent’s suitability policy has been provided to prospective purchasers the Adviser and the Placement Agent shall provide the Adviser with copies of Securities any amended policies on an annual basis.
(i) The Placement Agent will not externally publish or furnish any offering literature, advertising or marketing or other materials that contain any reference to the Fund or the Adviser without the prior written approval of the Principal Underwriter contemplated by authorized representatives Section 3(c) hereof. No employee of the Placement Agent or other person acting on behalf of the Placement Agent Syndicate Members is authorized to make any representation (oral or otherwise) concerning the Fund or the Shares except those contained in the Registration Statement and other Approved Offering Material.
(j) The Placement Agent will order Shares only from the Principal Underwriter. All such purchases shall be made only to cover purchase orders already received from the Placement Agent Customers or for its own bona fide investment.
(k) The Placement Agent will not contain any untrue statement delay in placing orders received from Placement Agent Customers so as to profit itself as a result of such delay, and the Placement Agent will place orders for purchases (and repurchases if applicable) promptly upon receipt from Placement Agent Customers.
(l) The Placement Agent has adopted policies and procedures reasonably designed to detect and prevent money laundering activities in compliance with applicable laws, regulations and regulatory interpretations. The Placement Agent undertakes that it shall (a) conduct its operations in accordance with applicable laws, regulations and regulatory interpretations; (b) provide access to its books, records and operations relating to its anti-money laundering compliance by appropriate regulatory authorities, and, if applicable, the Principal Underwriter and/or the Fund; (c) upon request, provide a copy of its anti-money laundering program (or a summary of its program) to the Principal Underwriter and/or the Fund; (d) certify in writing at least annually that it has implemented an anti-money laundering program in accordance with applicable rules and regulations of a material fact orfederal functional regulator, when taken together as that term is defined for purposes of 31 U.S.C. §103.122, and that it is in compliance with all applicable anti-money-laundering laws, rules, regulations and regulatory interpretations with respect to the services provided under this Agreement and that it is in compliance with applicable anti-money laundering laws, rules, regulations and regulatory interpretations with respect to the services provided under this Agreement, including, without limitation, that it has performed the required customer identification verification processes consistent with Section 326 of the USA Patriot Act and the Fund’s Customer Identification Program, a copy of which has been provided to the Placement Agent; and (e) upon the request of the Principal Underwriter and/or the Fund, provide reports to such person concerning anti-money laundering activities and compliance exceptions, as may be agreed from time to time.
(m) As required by applicable provisions of the Xxxxx-Xxxxx-Xxxxxx Act, any other applicable laws or regulations, and at all times in accord with the Fund’s privacy policy described in its Prospectus, the Placement Agent agrees to provide appropriate protections for personal financial information set forth of persons invested in the Offering Memorandum, omit to state a material fact Fund.
(n) The Placement Agent will (a) maintain all records required by law to be stated therein or necessary kept by it relating to make the statements therein, transactions in light Shares of the circumstances under which they were madeFund by or on behalf of Placement Agent Customers and compensation received by the Placement Agent in respect thereto, not misleading(b) upon request by the Principal Underwriter and/or the Fund in connection with a governmental, court or administrative proceeding, investigation or request, promptly make such records available to such requesting party, and (c) promptly notify the Principal Underwriter if the Placement Agent experiences any difficulty in maintaining the records described in the foregoing clause in an accurate and complete manner.
Appears in 1 contract
Samples: Placement Agent Agreement (Skybridge Multi-Adviser Hedge Fund Portfolios LLC)
