Representations and Warranties of the Standby Purchaser. The Standby Purchaser represents and warrants to the Company that, as of the date hereof (and as of the Closing Date): (a) If the Standby Purchaser is a partnership, corporation, trust or other entity or association (an "Entity"), the Standby Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation and has all requisite power and authority: to own, lease and operate its assets, properties and business; to carry on its business as now conducted; to execute and deliver this Agreement; and to perform fully its obligations hereunder. (b) If the Standby Purchaser is an Entity, the execution, delivery and performance of this Agreement by the Standby Purchaser, the fulfillment of and the compliance with the respective terms and provisions hereof and the due consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action on the part of the Standby Purchaser (none of which actions have been modified or rescinded, and all of which actions are in full force and effect). (c) When executed by the Standby Purchaser, this Agreement will constitute a valid and binding obligation of the Standby Purchaser, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles. (d) Except as may be required by applicable banking law, the Standby Purchaser is not subject to any law, ordinance, regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract, commitment, lease, agreement, instrument or other restriction of any kind that would prevent the Standby Purchaser's consummation of this Agreement or any of the transactions contemplated hereby without the consent of any third party, that would require the consent of any third party to the consummation of this Agreement or any of the transactions contemplated hereby, or that would result in any penalty, forfeiture or other termination as a result of such consummation (except, in each case, to the extent that consents and/or waivers have been obtained). (e) Neither the execution, delivery or performance of this Agreement by the Standby Purchaser nor the consummation by the Standby Purchaser of the transactions contemplated hereby constitutes or will constitute a violation or default under or conflicts with or will conflict with, or will result in the creation of any encumbrance on any of the assets owned by the Standby Purchaser under, any term or provision of the organizational documents of the Standby Purchaser, if the Standby Purchaser is an Entity, or any material contract, commitment, lease, instrument, or agreement to which the Standby Purchaser is a party or by which the Standby Purchaser is bound. (f) The Standby Purchaser (i) is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and (ii) has such knowledge and experience in financial and business matters that the Standby Purchaser is capable of evaluating the merits and risks of an investment in the Offered Shares. (g) The Standby Purchaser has received all the information the Standby Purchaser considers necessary or appropriate for deciding whether to purchase the Offered Shares. The Standby Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Offered Shares. The Standby Purchaser has access to all of the Company's filings with the Commission, pursuant to the Exchange Act. The Standby Purchaser acknowledges that the Company's fiscal year ends on December 31, 2017 and that the Company's financial results for the year, when known and announced, may adversely impact the market price of shares of the Common Stock, including an adverse impact on the market price of the Shares offered hereby.
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Representations and Warranties of the Standby Purchaser. The Standby Purchaser represents and warrants to the Company that, as of the date hereof (and as of the Closing Date):follows:
(a) If the Standby Purchaser is a partnership, corporation, trust or other entity or association (an "Entity")entity, the Standby Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization or formation and has all as set forth below such Investor’s name on the signature page hereof with the requisite power and authority: authority to own, lease purchase the Commitment Shares to be purchased by it hereunder and operate its assets, properties and business; to carry on its business as now conducted; to execute and deliver this Agreement; . The information with respect to the Standby Purchaser set forth on the signature page hereto is true, complete and to perform fully its obligations hereunderaccurate in all material respects.
(b) If Assuming the due authorization, execution and delivery thereof by the Company, this Agreement constitutes the Standby Purchaser’s valid and legally binding obligation, enforceable against the Standby Purchaser is an Entity, the execution, delivery and performance of this Agreement by the Standby Purchaser, the fulfillment of and the compliance with the respective terms and provisions hereof and the due consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action on the part of the Standby Purchaser (none of which actions have been modified or rescinded, and all of which actions are in full force and effect).
(c) When executed by the Standby Purchaser, this Agreement will constitute a valid and binding obligation of the Standby Purchaser, enforceable in accordance with its terms, terms except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to or affecting enforcement of creditors' ’ rights generally and the exercise of judicial discretion in accordance with general principles of equity.
(c) The Commitment Shares to be purchased by the Standby Purchaser hereunder will be acquired for the Standby Purchaser’s own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Securities Act, and the Standby Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Securities Act without prejudice, however, to the Standby Purchaser’s right at all times to sell or otherwise dispose of all or any part of such Allocated Shares in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by general equitable principlesthe Standby Purchaser to hold such Commitment Shares for any period of time. The Standby Purchaser does not presently have any agreement or understanding, directly or indirectly, with any Person, and has no present intention of having any such agreement or understanding, to distribute any of the Commitment Shares in violation of applicable securities laws. The Standby Purchaser is neither (i) a broker-dealer registered under the Exchange Act or an entity engaged in a business that would require it to be so registered nor (ii) in the business of underwriting securities. For purposes of this Agreement, the term “Person” means an individual, a corporation, a partnership, an association, a joint stock company, a limited liability company, a joint venture, a trust, a governmental entity, an unincorporated entity, or any other legal entity.
(d) Except as may be required by applicable banking law, the The Standby Purchaser acknowledges that it can bear the economic risk and complete loss of its investment in the Commitment Shares and has such knowledge and experience in financial or business matters that it is not subject to any law, ordinance, regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract, commitment, lease, agreement, instrument or other restriction capable of any kind that would prevent evaluating the Standby Purchaser's consummation of this Agreement or any merits and risks of the transactions contemplated hereby without the consent of any third party, that would require the consent of any third party to the consummation of this Agreement or any of the transactions investment contemplated hereby, or that would result in any penalty, forfeiture or other termination as a result of such consummation (except, in each case, to the extent that consents and/or waivers have been obtained).
(e) The Standby Purchaser (i) has received and read this Agreement, (ii) has read such of the Company’s periodic and other reports and proxy statements filed to date with, and made publicly-available by, the SEC pursuant to the Exchange Act, and the appendices and exhibits thereto and information incorporated by reference therein, concerning the Company and the Standby Offering as the Standby Purchaser deemed necessary or appropriate, (iii) has had the opportunity to ask the Company questions regarding the terms and conditions of the Standby Offering and the Company’s business and plans, (iv) has received answers that the Standby Purchaser deems to be satisfactory, (v) has discussed with the Company the risks and uncertainties relating to the business and plans of the Company, (vi) has had the opportunity to obtain, and to review with the Standby Purchaser’s attorneys, accountants and/or other advisers, any additional information which the representatives of the Company possess or can acquire without unreasonable effort or expense, (vii) is a sophisticated investor with such knowledge and experience in business and financial matters as will enable the Standby Purchaser to evaluate the merits and risks of investment in the Company, and (viii) has reviewed the type of investment that the shares of Common Stock constitutes, has determined that the such shares are a suitable investment for the Standby Purchaser, and is able to bear the economic risk and lack of liquidity of an investment in such shares. Neither the execution, delivery or performance of this Agreement such inquiries nor any other due diligence investigation conducted by the Standby Purchaser nor shall modify, limit or otherwise affect such Standby Purchaser’s right to rely on the consummation by the Company’s representations and warranties contained in this Agreement. The Standby Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the transactions contemplated hereby constitutes Commitment Shares or will constitute a violation the fairness or default under or conflicts with or will conflict with, or will result suitability of the investment in the creation of any encumbrance on any Commitment Shares, nor have such authorities passed upon or endorsed the merits of the assets owned by the Standby Purchaser under, any term or provision offering of the organizational documents of the Standby Purchaser, if the Standby Purchaser is an Entity, or any material contract, commitment, lease, instrument, or agreement to which the Standby Purchaser is a party or by which the Standby Purchaser is boundCommitment Shares.
(f) The Standby Purchaser understands that the Commitment Shares are being offered and sold to the Standby Purchaser in reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws and that the Company is relying upon the truth and accuracy of the representations and warranties of the Standby Purchaser set forth in this Section 3 to determine the availability of such exemptions and the eligibility of the Standby Purchaser to acquire the Commitment Shares.
(ig) The Standby Purchaser understands that the Commitment Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. Without limiting the scope of the foregoing, the Standby Purchaser acknowledges that the Commitment Shares have not been and, except as provided in Section 8 hereof, are not being registered under the Securities Act and may not be transferred or resold without registration under the Securities Act or unless pursuant to an exemption therefrom.
(h) The Standby Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated D, as amended, under the Securities Act, as amended by the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Investor Qualification Questionnaire (the “IQQ”) attached as Exhibit A of this Agreement that the Standby Purchaser has completed, as well as all of the statements, answers and information therein, are true and correct in all material respects as of the date hereof and will be true and correct in all material respects as of the Closing Date.
(j) The Standby Purchaser did not learn of the investment in the Commitment Shares as a result of any general solicitation or general advertising.
(k) No Person will have, as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company, any Subsidiary or the Standby Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Standby Purchaser.
(l) Except as set forth in Schedule 3(l) attached hereto, no authorization, approval, consent (or non-objection) or license of any government, governmental instrumentality or court, domestic or foreign (other than under the Securities Act and (iiapplicable state securities laws) has such knowledge and experience in financial and business matters that or of any other Person is required for the purchase by the Standby Purchaser is capable of evaluating the merits and risks of an investment in Commitment Shares or for the Offered Shares.
(g) The Standby Purchaser has received all the information consummation by the Standby Purchaser considers necessary or appropriate for deciding whether to purchase of any other transaction contemplated by this Agreement (the Offered Shares. The Standby Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Offered Shares. The Standby Purchaser has access to all of the Company's filings with the Commission, pursuant to the Exchange Act. The Standby Purchaser acknowledges that the Company's fiscal year ends on December 31, 2017 and that the Company's financial results for the year, when known and announced, may adversely impact the market price of shares of the Common Stock, including an adverse impact on the market price of the Shares offered hereby“Consents”).
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Representations and Warranties of the Standby Purchaser. The Standby Purchaser represents and warrants to the Company that, as of the date hereof (and as of the Closing Date):
(a) If the Standby Purchaser is a partnership, corporation, trust or other entity or association (an "“Entity"”), the Standby Purchaser is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or formation and has all requisite power and authority: to own, lease and operate its assets, properties and business; to carry on its business as now conducted; to execute and deliver this Agreement; and to perform fully its obligations hereunder.
(b) If the Standby Purchaser is an Entity, the execution, delivery and performance of this Agreement by the Standby Purchaser, the fulfillment of and the compliance with the respective terms and provisions hereof and the due consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action on the part of the Standby Purchaser (none of which actions have been modified or rescinded, and all of which actions are in full force and effect).
(c) When executed by the Standby Purchaser, this Agreement will constitute a valid and binding obligation of the Standby Purchaser, enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' ’ rights generally or by general equitable principles.
(d) Except as may be required by applicable banking law, the Standby Purchaser is not subject to any law, ordinance, regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract, commitment, lease, agreement, instrument or other restriction of any kind that would prevent the Standby Purchaser's ’s consummation of this Agreement or any of the transactions contemplated hereby without the consent of any third party, that would require the consent of any third party to the consummation of this Agreement or any of the transactions contemplated hereby, or that would result in any penalty, forfeiture or other termination as a result of such consummation (except, in each case, to the extent that consents and/or waivers have been obtained).
(e) Neither the execution, delivery or performance of this Agreement by the Standby Purchaser nor the consummation by the Standby Purchaser of the transactions contemplated hereby constitutes or will constitute a violation or default under or conflicts with or will conflict with, or will result in the creation of any encumbrance on any of the assets owned by the Standby Purchaser under, any term or provision of the organizational documents of the Standby Purchaser, if the Standby Purchaser is an Entity, or any material contract, commitment, lease, instrument, or agreement to which the Standby Purchaser is a party or by which the Standby Purchaser is bound.
(f) The Standby Purchaser (i) is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and (ii) has such knowledge and experience in financial and business matters that the Standby Purchaser is capable of evaluating the merits and risks of an investment in the Offered Standby Purchaser Shares. Such Purchaser is capable of protecting its own interests in connection with this investment and has experience as an investor in securities of companies like the Company. Such Purchaser is able to hold the Shares indefinitely if required, is able to bear the economic risk of an investment in the Shares, and, at the present time, is able to afford a complete loss of such investment.
(g) The Standby Purchaser is purchasing the Standby Purchaser Shares for the Standby Purchaser’s own account, for investment purposes only and not with a present intention of entering into or making any subsequent sale, assignment, conveyance, pledge, hypothecation or other transfer thereof.
(h) The Standby Purchaser has received all the information the Standby Purchaser considers necessary or appropriate for deciding whether to purchase the Offered Standby Purchaser Shares. The Standby Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Offered Standby Purchaser Shares. The Standby Purchaser has access to all of the Company's ’s filings with the Commission, pursuant to the Exchange Act. The Standby Purchaser acknowledges that the Company's ’s fiscal year ends on December 31, 2017 and that the Company's ’s financial results for the year, when known and announced, may adversely impact the market price of shares of the Common Stock, including an adverse impact on the market price of the Standby Purchaser Shares offered hereby.
(i) The Standby Purchaser did not learn of the investment in the Offered Shares as a result of any general solicitation or general advertising, as such terms are used in Regulation D promulgated under the Securities Act.
(j) The Standby Purchaser understands that the Standby Purchaser Shares are being offered and sold to the Standby Purchaser in reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws and that the Company is relying upon the truth and accuracy of the representations and warranties of the Standby Purchaser set forth in this Section 4 to determine the availability of such exemptions and the eligibility of the Standby Purchaser to acquire the Standby Purchaser Shares.
(k) The Standby Purchaser understands that the Offered Shares purchased by the Standby Purchaser are deemed “restricted securities” as such term is defined in Rule 144 promulgated under the Securities Act (“Rule 144”), and they may not be sold, assigned, conveyed, pledged, hypothecated or otherwise transferred by a holder thereof except pursuant to Rule 144, pursuant to an effective registration statement registering the Offered Shares under the Securities Act or pursuant to any other available exemption from the registration requirements of the Securities Act then in effect. Furthermore, the following legends (or similar language) shall be placed on such certificate(s) representing the shares of Common Stock: THE ISSUANCE OF THESE SECURITIES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE ACT (PROVIDED THAT THE TRANSFEROR PROVIDES THE COMPANY WITH REASONABLE ASSURANCES (IN THE FORM OF A SELLER REPRESENTATION LETTER AND, IF APPLICABLE, A BROKER REPRESENTATION LETTER) THAT THE SECURITIES MAY BE SOLD PURSUANT TO SUCH RULE).
Appears in 1 contract
Representations and Warranties of the Standby Purchaser. The Standby Purchaser represents and warrants to the Company that, as of the date hereof (and as of the Closing Date):follows:
(a) If the Standby Purchaser is a partnership, corporation, trust or other entity or association (an "Entity"), the i) The Standby Purchaser is duly organized, validly existing existing, and in good standing under the laws of the jurisdiction of its organization organization, and (ii) has the requisite corporate, partnership, limited liability company or formation and has all requisite other power and authority: authority to own, lease and operate own its assets, properties and business; assets and to carry on its business as it is now being conducted; to execute and deliver this Agreement; and to perform fully its obligations hereunder.
(b) If the The Standby Purchaser is an Entityacquiring the Securities for its own account, the execution, delivery and performance of this Agreement by the Standby Purchaser, the fulfillment of and the compliance with the respective terms intention of holding the Securities for investment and provisions hereof and the due consummation with no present intention of participating, directly or indirectly, in a distribution of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or other action on the part of the Standby Purchaser (none of which actions have been modified or rescinded, and all of which actions are in full force and effect)Securities.
(c) When This Agreement has been duly and validly authorized, executed and delivered by the such Standby Purchaser, this Agreement will constitute Purchaser and constitutes a valid and binding obligation of the such Standby Purchaser, Purchaser enforceable against it in accordance with its terms, except as may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other and similar laws relating to or affecting creditors' ’ rights generally and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or by general equitable principlesin equity).
(d) Except as may be required by applicable banking law, the The Standby Purchaser is not subject hereby acknowledges that (i) the Company has retained Dxxxxxxx Pxxxxx & Partners to any lawserve as the agent (the “Agent”) in connection with the Stock Offerings, ordinancepursuant to which the Agent will receive fees for each share of Common Stock sold in the Stock Offerings as described in the Prospectus, regulation, rule, order, judgment, injunction, decree, charter, bylaw, contract, commitment, lease, agreement, instrument or other restriction of any kind that would prevent and (ii) the Standby Purchaser's consummation of this Agreement or any of the transactions contemplated hereby without the consent of any third party, that would require the consent of any third party to the consummation of this Agreement or any of the transactions contemplated hereby, or that would result in any penalty, forfeiture or other termination as a result of such consummation (except, in each case, to the extent that consents and/or waivers have been obtained).
(e) Neither the execution, delivery or performance of this Agreement securities purchased by the Standby Purchaser nor the consummation by the Standby Purchaser of the transactions contemplated hereby constitutes or will constitute a violation or default under or conflicts with or will conflict with, or will result in the creation of any encumbrance on any of Stock Offerings will be acquired from the assets owned by the Standby Purchaser under, any term or provision of the organizational documents of the Standby Purchaser, if the Standby Purchaser is an Entity, or any material contract, commitment, lease, instrument, or agreement to which the Standby Purchaser is a party or by which the Standby Purchaser is bound.
(f) The Standby Purchaser (i) is an accredited investor as defined in Rule 501(a) of Regulation D promulgated Company without registration under the Securities Act and (ii) has such knowledge and experience in financial and business matters that the Standby Purchaser is capable of evaluating the merits and risks of an investment in the Offered Shareswill constitute restricted securities.
(g) The Standby Purchaser has received all the information the Standby Purchaser considers necessary or appropriate for deciding whether to purchase the Offered Shares. The Standby Purchaser has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Offered Shares. The Standby Purchaser has access to all of the Company's filings with the Commission, pursuant to the Exchange Act. The Standby Purchaser acknowledges that the Company's fiscal year ends on December 31, 2017 and that the Company's financial results for the year, when known and announced, may adversely impact the market price of shares of the Common Stock, including an adverse impact on the market price of the Shares offered hereby.
Appears in 1 contract
