Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that: (a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assets; (b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity; (c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares; (d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not: (i) conflict with or violate its organizational documents; (ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates; (iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or (iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; (e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement; (f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder); (g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act; (h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement; (i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and (j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Resolute Compo Holdings LLC), Stock Purchase Agreement (Resolute Compo Holdings LLC), Stock Purchase Agreement (Logan Michele)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assets;
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers Seller all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by SellersSeller, any of their Seller’s Affiliates, or any Person representing or acting on behalf of Sellers Seller with respect to the foregoing, and (z) acknowledges that none of Sellers makes Seller does not make any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers Seller specifically make makes no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers Seller was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers Seller in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers Seller and/or their Seller’s Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers Seller shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the SellersSeller, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Resolute Compo Holdings LLC), Stock Purchase Agreement (Resolute Compo Holdings LLC), Stock Purchase Agreement (Resolute Compo Holdings LLC)
Representations of Buyer. Buyer represents and warrants to each Seller that as follows:
(a) Buyer is an entity which as of the date of this Agreement Closing will be duly organized and the Closing Date that:
(a) it is duly organized, validly existing in the state of its formation and in good standing duly qualified under the Laws laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assetsState of California;
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it Buyer has full limited liability company power and authority to enter into this Agreement and to consummate carry out the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest provided for in and to the Purchased Shares;
(d) the this Agreement. The execution and delivery of this Agreement by it, the performance by it of its obligations hereunder Buyer and the consummation by Buyer of the transactions contemplated herein have been duly and validly authorized by all necessary actions on Buyer’s part, and this Agreement constitutes a valid and legally binding obligation of Buyer, enforceable against Buyer in accordance with its terms subject to the effect of liquidation, rehabilitation, conservatorship, bankruptcy, insolvency, moratorium, reorganization, rearrangement, fraudulent transfer, receivership or similar laws or judicial decisions relating to or affecting the rights of creditors generally;
(c) Neither the execution and delivery of this Agreement, nor the consummation by Buyer of the transactions contemplated hereby, nor the compliance by Buyer with any of the provisions hereof will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of or default under any of the terms terms, conditions or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person provisions of any right to cause the acceleration of) any performance of any note, bond, mortgage indenture, license, agreement or other instrument or obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it Buyer is a party or by which it or to which it, any of its properties or its assets may be subjectbound, bound or affected or (yii) violate any applicable Laworder, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder injunction, decree, statute, rule or regulation applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder)assets or properties;
(gd) it Buyer is not a party to any bankruptcy or similar proceeding, nor are there any other matters pending which would affect Buyer’s ability to purchase the Property as provided herein.
(e) Except for Buyer’s reliance upon the representations and warranties of Seller expressly set forth in this Agreement and the full performance by Seller of Seller’s obligations under this Agreement, upon the Closing (i) is acquiring Buyer shall accept the Purchased Shares solely for its own account for investment purposes Property “as is, where is, with all faults,” and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) Buyer has not relied on any assertions made by Sellersand will not rely on, and Seller shall not be liable for or bound by, any of their Affiliateswarranties, guaranties, statements, representations or any Person representing information pertaining to the Property or acting on behalf of Sellers relating thereto (including specifically, without limitation, offering packages distributed with respect to the foregoingProperty) made or furnished by Seller or any real estate broker or agent representing or purporting to represent Seller. Buyer represents and warrants to Seller that Buyer has conducted, or will conduct prior to the Closing, such investigations of the Property, including but not limited to, the physical and environmental conditions thereof, as Buyer deems necessary or desirable to satisfy itself as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to any hazardous or toxic substances affecting Property, and (z) acknowledges that none will rely solely upon same and not upon any information provided by or on behalf of Sellers makes any representation Seller or warranty its agents or employees with respect thereto, other than the representations and warranties of any kind except as Seller expressly set forth in Section 1.2this Agreement. Subject to Seller’s representations, warranties and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as covenants expressly set forth in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate Buyer represents and warrants that upon the transactions contemplated Closing Buyer shall assume the risk that adverse matters, including but not limited to, construction defects and adverse physical and environmental conditions, may not have been revealed by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers Buyer’s investigations. The foregoing representations shall be true as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by date hereof and as of the Sellers was privately negotiated in an independent transaction, date of the Closing and shall survive for a period of one (y1) year from and after the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and date of Closing (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges except that the Sellers and/or their Affiliates may have, representations and may later come warranties set forth in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings Section 12(e) shall survive and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”continue en force in perpetuity), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.), Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.), Purchase and Sale Agreement (Cornerstone Core Properties REIT, Inc.)
Representations of Buyer. Buyer represents and warrants BUYER hereby declares to each Seller that SELLER, as of the signing date below and on the date of this Agreement each supply of the Product, assuming responsibility for the correctness and the Closing Date truthfulness of such representations, that:
(a) it is a duly organized, organized and validly existing and in good standing established joint stock corporation under the Laws laws of the jurisdiction Brazil and that governs it, it has full legal capacity to own and has the full entity power operate its facilities and authority to carry on conduct its business as now conducted at present, and is duly qualified to own its assetsacquire the SELLER’s Product under the terms of this Contract;
(b) it has obtained all the corporate or similar authorizations required to sign this Agreement Contract and to comply with the obligations attributed to it hereunder;
(c) this Contract has been duly and validly executed and delivered by itBUYER and constitutes a legal, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, insofar as BUYER is concerned and is enforceable against it in accordance with on the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) it is not insolvent, under court protection from creditors, extrajudicial or judicial recovery, and it is neither impeded from paying its obligations and nor has it been declared bankrupt;
(e) neither the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and Contract nor the consummation of the transactions contemplated hereby, and performance of the terms and conditions of this Contract by BUYER will not:
(i) conflict with result in a violation or violate its organizational documents;
breach of or default under any provision of the by-laws of BUYER; (ii) require any consent, approval, order will result in a violation or authorization breach of or default under any provision of any agreement, indenture or other action instrument under which BUYER is bound; or (iii) violate any Applicable Law of or by any Governmental Entity Authority which may negatively affect or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with prevent the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part performance of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreementhereunder;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (been and will have at continue to be in full compliance with all Applicable Law related to the Closingperformance of this Contract, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder including without limitation those regarding tax, environmental, labor and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder)social security matters;
(g) it (i) is acquiring the Purchased Shares solely has obtained and will keep all licenses, permits and authorizations required for its own account for investment purposes operation and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 the performance of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;Contract; and
(h) it (i) has there is no court or had access to all information that it believes to be necessaryadministrative litigation, sufficient action, suit, proceeding, condemnation, investigation, claim, audit, order, decision, decree, writ, judgment, injunction, determination or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition award or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and any arbitration proceeding that may be material prevent, limit or affect BUYER’s ability to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor perform any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by obligations under this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementContract.
Appears in 3 contracts
Samples: Supply Contract (National Steel Co), Supply Contract (National Steel Co), Supply Contract (National Steel Co)
Representations of Buyer. 2.2.1 Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power right, power, capacity and authority to carry on its business as now conducted execute and to own its assets;
(b) deliver this Agreement. This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, Buyer enforceable against it Buyer in accordance with the terms hereofits terms, except as such enforceability enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;, whether applied in a court of law or a court of equity, and by bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally.
(c) it has full limited liability company power 2.2.2 The execution and authority to enter into delivery of this Agreement and the performance of the obligations imposed hereunder will not conflict with, or result in a breach by Buyer of any material agreement or instrument to consummate the transactions contemplated herebywhich she is a party, including to purchaseor by which she or any of her properties or assets are bound, acquire or result in a violation of any order, decree, or judgment of any court or governmental agency having jurisdiction over her or her properties, and accept from Sellers all rightno consent, title and interest authorization or order of, or filing or registration with, any court, governmental, or regulatory authority is required in and to the Purchased Shares;
(d) connection with the execution and delivery of this Agreement by it, and any related agreements or the performance by it of its her or her obligations hereunder and the consummation of the transactions contemplated hereby, will not:hereunder.
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which 2.2.3 Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely Option for its her own account for investment purposes and not with a view to, or for offer or sale resale in connection with, any a distribution thereofof the Option or the Common Stock underlying the Option (collectively, (iithe “Securities”) is an “accredited investor” as defined under Section 501 within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). In that regard, Buyer understands that (iia) the Securities have not been registered under the Securities Act or under any state securities laws and are therefore restricted securities; (b) the Securities may not be sold or transferred unless they are registered under the Securities Act or an exemption from such registration is available; and (c) Kensington may place a restrictive legend on the certificate evidencing the Securities reflecting these restrictions.
2.2.4 Buyer understands that an investment in the Securities involves risk, and Buyer has the financial ability to bear the economic risk of this investment in the Securities, including a complete loss of such investment.
2.2.5 Buyer has such knowledge, sophistication knowledge and experience in financial and business matters that it Buyer is capable of evaluating the merits and risks of entering into this Agreement and consummating an investment in the transactions contemplated hereby, (iii) (x) Securities.
2.2.6 Buyer is relying on its own due diligence and review an “accredited investor” within the meaning of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration Regulation D under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Option Purchase Agreement (Merrimen Investments, Inc.), Option Purchase Agreement (Kensington Leasing, Ltd.)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws laws of the jurisdiction that governs itState of Oklahoma, and has the full entity power and authority is duly qualified to carry on its business as now conducted and is in good standing in each state where the nature of its business requires qualification. The consummation of the transactions contemplated by this Agreement will not violate or be in conflict with (i) any provision of Buyer's organizational documents, and (ii) any provision of any agreement to own its assets;which Buyer is a party or by which Buyer is bound or any judgment, decree, order, statute, rule or regulation applicable to Buyer.
(b) Buyer has the limited liability company power to enter into and perform this Agreement and the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all requisite limited liability company action on the part of Buyer. This Agreement has been duly executed and validly delivered on behalf of Buyer and, at Closing, all documents and instruments required hereunder to be executed and delivered by itBuyer shall have been fully executed and delivered.
(c) This Agreement constitutes a legal, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, Buyer enforceable against it in accordance with its terms, subject, however, to the terms hereof, except as such enforceability may be limited by effects of bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general laws, as well as to principles of equity;equity (regardless of whether such enforceability is considered in a proceeding in equity or at law.
(cd) it Buyer is experienced and knowledgeable in the oil and gas business and is aware of its risks. Buyer acknowledges that Seller has full limited liability company power made no representations or warranties whatsoever, express or implied, as to the reserves attributable to the Properties or the value thereof, except as otherwise specifically set forth herein, as to the condition or state of repair of any of the Properties or as to the legal, tax or other consequences of the transaction contemplated by this Agreement. In entering into this Agreement, Buyer has relied solely upon its independent investigation of, and judgment with respect to, such matters. Buyer understands and accepts the risks and absence of liquidity inherent in ownership of the Properties. Buyer acknowledges that, except as otherwise specifically set forth herein, no representations have been made by Seller regarding any environmental conditions or physical conditions of the Properties, past or present.
(e) Buyer has all authority necessary to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers perform all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Chancellor Group Inc.), Purchase and Sale Agreement (Chancellor Group Inc.)
Representations of Buyer. Buyer represents and warrants BUYER hereby declares to each Seller that SELLER, as of the signing date below and on the date of this Agreement each supply of the Product, assuming responsibility for the correctness and the Closing Date truthfulness of such representations, that:
(a) it is a duly organized, organized and validly existing and in good standing established joint stock corporation under the Laws laws of the jurisdiction Brazil and that governs it, it has full legal capacity to own and has the full entity power operate its facilities and authority to carry on conduct its business as now conducted at present, and is duly qualified to own its assetsacquire SELLER’s Product under the terms of this Contract;
(b) it has obtained all the corporate or similar authorizations required to sign this Agreement Contract and to comply with the obligations attributed to it hereunder;
(c) this Contract has been duly and validly executed and delivered by itSELLER and constitutes a legal, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, insofar as the BUYER is concerned and is enforceable against it in accordance with on the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) it is not insolvent, under court protection from creditors, extrajudicial or judicial recovery, and it is neither impeded from paying its obligations and nor has it been declared bankrupt;
(e) neither the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and Contract nor the consummation of the transactions contemplated hereby, and performance of the terms and conditions of this Contract by BUYER will not:
(i) conflict with result in a violation or violate its organizational documents;
breach of or default under any provision of the by-laws of BUYER and (ii) require any consent, approval, order result in a violation or authorization breach of or other action by default under any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status provision of any Seller agreement, indenture or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of instrument under which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it BUYER is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreementbound;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (been and will have at continue to be in full compliance with all Applicable Law related to the Closingperformance of this Contract, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder including without limitation those regarding tax, environmental, labor and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder)social security matters;
(g) it (i) is acquiring the Purchased Shares solely has obtained and will keep all licenses, permits and authorizations required for its own account for investment purposes operation and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 the performance of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;Contract; and
(h) it (i) has there is no court or had access to all information that it believes to be necessaryadministrative litigation, sufficient action, suit, proceeding, condemnation, investigation, claim, audit, order, decision, decree, writ, judgment, injunction, determination or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition award or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and any arbitration proceeding that may be material prevent, limit or affect BUYER’s ability to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor perform any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by obligations under this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementContract.
Appears in 2 contracts
Samples: Iron Ore Supply Contract (National Steel Co), Iron Ore Supply Contract (National Steel Co)
Representations of Buyer. Buyer hereby represents and warrants to each Seller that as of the following representations and warranties are correct on this date of this Agreement and will remain correct at the Closing Date thatDate:
(a) it Buyer is a limited company duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, United Kingdom and has the full entity power and authority to carry on execute and deliver this Agreement, to perform its business as now conducted obligations hereunder and to own its assetsconsummate the transactions contemplated hereby, including, without limitation, to purchase and to receive the Shares from Seller pursuant to this Agreement;
(b) the execution, delivery and performance of this Agreement by Buyer, and the consummation by Buyer of the transactions contemplated hereby, including, without limitation, to purchase and to receive the Shares from Seller pursuant to this Agreement, has been duly and validly authorized by all necessary action required on the part of Buyer. This Agreement has been duly and validly executed and delivered by itBuyer and constitutes the legal, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation obligations of it, Buyer enforceable against it Buyer in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equityits terms;
(c) it has full limited liability company power the execution, delivery and authority to enter into performance by Buyer of this Agreement and to consummate the transactions contemplated herebyrequires no previous consent or approval of, including to purchaseauthorization from, acquire and accept from Sellers all rightaction by or in respect of, title and interest in and to the Purchased Sharesor filing with, any Governmental Authority, other than as may be required by XXXX;
(d) neither the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and nor the consummation of the transactions contemplated hereby, and performance of the terms and conditions of this Agreement will not:
(i) conflict with result in a violation or violate its organizational documents;
breach of or default under any provision of the constitutive documents of Buyer; or (ii) result in a violation or breach of any provision of any agreement, indenture or other instrument to which Buyer is bound; or (iii) require any consent, approval, order or authorization of consent or other action by any Governmental Entity or any registrationPerson, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, constitute a default under, a conflict with, or the acceleration of (or the creation in any Person of give rise to any right to cause the of termination, cancellation or acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of Buyer has full financial capacity to comply with the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by Payment obligations provided under this Agreement;; and
(f) it has as of Buyer acknowledges that the date hereof, Company is a public-held corporation. Buyer acknowledges and it will have at all times through the Closing, access represents to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Seller that Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring a qualified investor with knowledge in the Purchased Shares solely for its own account for investment purposes securities market and not with a view to, or for offer or sale in connection with, any distribution thereof, the industry of the Company; (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement Transaction, has undertaken financial and consummating the transactions contemplated hereby, legal advice from reputable advisors; and (iii) (x) is relying on its own has carried out and concluded a full due diligence and review of all the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation public documents of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect available at CVM’s website (xxx.xxx.xxx.xx).
3.2.1. Notwithstanding any provision of this Agreement to the transactions contemplated by this Agreementcontrary, (vii) has made its own decision Buyer makes no representations or warranties to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and Seller or any other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate Person in connection with the transactions contemplated herein, except as specifically set forth in this Section 3.2. All other representations and warranties, whether express or implied, are disclaimed by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Share Purchase Agreement (Intercontinentalexchange Inc), Share Purchase Agreement (Intercontinentalexchange Inc)
Representations of Buyer. In connection with the transactions contemplated hereby, Buyer represents and warrants to each Seller that the Company as of the date hereof and covenants and agrees that:
a. If Buyer is not an individual, Buyer is duly organized and existing under the laws of its jurisdiction of organization.
b. All consents, approvals, authorizations and orders necessary for the execution and delivery by Buyer of this Agreement and for the purchase of the Option Shares to be purchased by Buyer hereunder, have been obtained; and Buyer has authority to enter into this Agreement, and as of the Closing Date that:
(a) it is duly organizedwill have, validly existing and in good standing under the Laws of the jurisdiction that governs itfull right, and has the full entity power and authority to carry on its business deliver the Purchase Price to the Company at the Closing, except for such consents, approvals, authorizations and orders as now conducted and to own its assets;would not impair in any material respect the consummation of Buyer’s obligations hereunder.
(b) this c. This Agreement has been duly and validly authorized, executed and delivered by it, and, assuming the due execution Buyer and delivery thereof by each other party hereto, is, and will be, constitutes a valid and binding obligation agreement of itBuyer, enforceable against it in accordance with the terms hereofits terms, except as such enforceability to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar Laws laws affecting the enforcement of creditors’ rights of creditors generally and or by general principles equitable principles.
d. The purchase of equity;
(c) it has full limited liability company power the Option Shares to be purchased by Buyer hereunder and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers compliance by Buyer with all right, title and interest in and to of the Purchased Shares;
(d) the execution and delivery provisions of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
herein (i) does not and will not conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach or violation of any of the terms or conditions provisions of, or constitute a default under, a conflict withany statute, indenture, mortgage, deed of trust, loan agreement or the acceleration of (other agreement or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment instrument to which it Buyer is a party or by which Buyer is bound or to which itany of the property or assets of Buyer is subject as of the date hereof and as of the Closing, its properties (ii) nor will such action result in any violation of the provisions of (A) any organizational or its assets may be subject, bound or affected similar documents pursuant to which Buyer was formed (to the extent Buyer is not an individual) or (yB) any applicable Lawstatute or any order, assuming all required notifications and filings are made under rule or regulation of any court or governmental agency or body having jurisdiction over Buyer or the HSR Act and any waiting period (and any extension thereof) under property of Buyer; except in the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (xi) and or clause (yii)(B), other than any for such Violations conflicts, breaches, violations or defaults as would not, either individually or not impair in any material respect the consummation of Buyer’s obligations hereunder.
e. Buyer has completed an investor questionnaire in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated form provided by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes Company and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as such term is defined under Section 501 of Regulation D promulgated under the Securities ActAct of 1933, (ii) as amended. Buyer has such knowledge, sophistication knowledge and experience in financial and or business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review purchase of the businessOption Shares. Buyer has received, operationsand had an opportunity to review, assets, liabilities, financial condition and prospects copies of the most recent Annual Report on Form 10-K for the Company, Holdings together with all Quarterly Reports on Form 10-Q that have been filed subsequent to the most recent Annual Report on Form 10-K. Buyer has had the opportunity to review the Purchase Agreement and their respective subsidiaries Exhibits thereto and value to ask questions and receive answers concerning the terms and conditions of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects transfer of the Company, Holdings Option Shares and their respective subsidiaries or has had full access to such other information concerning the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of Option Shares and the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) requested. Buyer has or had access to received all information that it believes to be necessary, sufficient is necessary or appropriate in connection with the transactions contemplated by this Agreementtransfer of the Option Shares. Buyer is an informed and sophisticated party and has engaged, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the businessextent Buyer deems appropriate, operations, assets, liabilities, financial condition or prospects expert advisors experienced in the evaluation of transactions of the Company, Holdings type contemplated hereby.
f. Buyer understands and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability following restrictions and limitations are applicable to Buyerhis/her/its purchases and resales, and Buyer waives and releases any claims that it might have against the Sellerspledges, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale hypothecations, or other transfers of the Purchased Option Shares:
i. The Option Shares shall not be sold, pledged, hypothecated, or otherwise transferred unless registered under the Securities Act and the transactions contemplated by this Agreementapplicable state securities laws or an exemption from registration is available;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions ii. Each certificate or other like payments document evidencing or representing the Option Shares shall be stamped or otherwise imprinted with a legend in connection with substantially the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
following form: THE SECURITIES OF THE COMPANY EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, AND VARIOUS APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR ASSIGNED OR A SECURITY INTEREST CREATED THEREIN, UNLESS THE PURCHASER, TRANSFEREE, ASSIGNEE, PLEDGEE OR HOLDER OF SUCH SECURITY INTEREST COMPLIES WITH ALL STATE AND FEDERAL SECURITIES LAWS (jI.E., SUCH SECURITIES ARE REGISTERED UNDER SUCH LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE THEREUNDER) neither itAND UNLESS THE SELLER, nor any of its AffiliatesTRANSFEROR, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing productsASSIGNOR, servicesPLEDGOR OR GRANTOR OF SUCH SECURITY INTEREST PROVIDES AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT THE TRANSACTION CONTEMPLATED WOULD NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, technologiesAS AMENDED, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementOR ANY APPLICABLE STATE SECURITIES LAWS.
Appears in 2 contracts
Samples: Backstop Agreement (Sacks Michael Ivan), Backstop Agreement (ULURU Inc.)
Representations of Buyer. (a) Buyer hereby agrees, acknowledges and represents and warrants to each that neither Seller that nor any person or party on behalf of Seller has made directly or indirectly, orally or in writing, any representation, warranty or covenant, express, implied or statutory, of any kind whatsoever upon which Buyer has relied in entering into this Agreement or upon which Buyer has relied, is relying or shall rely in consummating the transaction contemplated by this Agreement (except as of the date set forth in subparagraph 13 of this Agreement (including, specifically and without limitation, any prospectus or other materials of any nature whatsoever distributed by Seller or its agents or representatives or otherwise delivered to or secured by Buyer with respect to the Property), Buyer further agrees, acknowledges and represents to Seller that, subject to the terms and conditions of this Agreement, (i) Buyer has examined the Property and has fully satisfied itself with respect to the Property and the Closing Date that:
(a) it is duly organized, validly existing condition and in good standing under the Laws all other aspects and attributes of the jurisdiction that governs itProperty; and (ii) Buyer is purchasing and shall, on the Closing Date, accept the Property in “as is”, “where is” and has the full entity power “with all faults and authority to carry on its business as now conducted and to own its assets;defects” condition, without any representation, warranty or covenant, express, implied or statutory, of any kind whatsoever.
(b) this Agreement has been duly Buyer further agrees, acknowledges and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter represents that Buyer is entering into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers shall perform all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and consummate the consummation of the transactions transaction contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make solely in reliance on and as a result of Buyer’s own investigations and efforts (including Buyer’s inspection of the specific legal Property and such other investigations, examinations and inspections as Buyer has chosen to make or regulatory status has made) and at Buyer’s sole risk, cost and expense, including, without limitation, the risk that Buyer’s inspection of the Property and such other investigations, examinations and inspections may not reveal any or all adverse or existing conditions, aspects or attributes of the Property. Buyer acknowledges and represents (i) that Seller has afforded Buyer the opportunity for full and complete investigation, examination and inspection of the Property and that Buyer has conducted or will conduct prior to closing, such investigations of the Property, including but not limited to the physical and environmental conditions thereof, as Buyer, in Buyer’s sole discretion, deems necessary, desirable or advisable to satisfy itself as to the condition of the Property and the existence or non-existence or curative action to be taken with respect to, among other things, any hazardous or Hazardous Substances (as hereinafter defined) on or discharged from the Property, and Buyer shall rely solely upon the same and not upon any information provided by or on behalf of Seller or any of its Affiliates agents, employees or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (representatives with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y)respect thereto, other than any such Violations representations, warranties or covenants of Seller as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as are expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) that Buyer has elected to purchase the Property without making any such investigation, examination or inspection. Buyer acknowledges that this paragraph was a negotiated part of this Agreement and serves as an essential component of consideration for the Sellers and/or their Affiliates may havesame. Without limiting the generality of the foregoing, the parties specifically acknowledge that Buyer has had an opportunity to fully inspect the Property, including, but not limited to, the physical condition of the Real Property and the Personal Property (including all environmental concerns), and may later come in possession ofthe Purchase Price has been negotiated to eliminate all claims, information with respect whether known or unknown, relating to the business, operations, assets, liabilities, financial condition or prospects of the CompanyProperty and all aspects and attributes thereof, Holdings including, without limitation, all environmental matters. Consequently, this clause bars all claims, whether or not presently known, brought by Buyer concerning the condition of the Property and their respective subsidiaries all aspects and attributes thereof, specifically including, without limitation, all claims pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, any other federal, state or local environmental law, rule or regulation or otherwise. Notwithstanding the parties’ intent that is all such claims be barred, should a court of competent jurisdiction deem otherwise, the presence of this paragraph and the provisions of paragraph 2 hereof are intended by the parties to serve, and shall serve, as the overwhelming, primary factor in any equitable apportionment of damages under the Comprehensive Environmental Response, Compensation and Liability Act, as amended, as well as any other federal, state or local environmental law, rule or regulation or otherwise.
(c) The provisions of this Section 12 are not known intended to derogate from Buyer’s right to rely upon any express representations and warranties of Seller otherwise provided for in this Agreement.
(d) Buyer shall confirm the agreements, acknowledgments and that may be material to a decision to acquire representations contained in this paragraph as of the Purchased Shares (the “Seller Excluded Information”Closing Date. The provisions of this paragraph 12(a), (iiib), (c) has determined to acquire and (d) shall survive the Purchased Shares notwithstanding its lack of knowledge closing and the delivery of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases Deed or any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Seachange International Inc)
Representations of Buyer. Buyer hereby represents and warrants to each Seller that as of the date of this Agreement and the Closing Date ASC that:
(a) it Buyer is a corporation duly organizedformed, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assetsSouth Dakota;
(b) Buyer has all requisite corporate power and authority to execute and deliver this Agreement and the instruments to be delivered by Buyer at the Second Closing, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and the instruments to be delivered by Buyer at the Second Closing, and the performance by Buyer of its obligations hereunder and thereunder, have been duly and validly authorized by all necessary corporate action. This Agreement has been been, and the instruments to be delivered by Buyer at the Second Closing will, at the Second Closing, be duly and validly executed and delivered by itBuyer and constitutes (or, andin the case of instruments to be delivered by Buyer at the Second Closing will, assuming at the due execution and delivery thereof by each other party heretoSecond Closing, isconstitute) the legal, and will be, a valid and binding obligation of it, Buyer enforceable against it Buyer in accordance with the terms hereofits terms, except as such enforceability the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, arrangement, moratorium and or other similar Laws relating to or affecting the rights of creditors generally and generally, or by general principles of equity;Equitable Principles; and
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely Retained Interest for its own account as an investment without the present intent to sell, transfer or otherwise distribute the same to any other Person. Buyer has made, independently and without reliance on ASC (except to the extent that Buyer has relied on the representation and warranties of ASC in this Agreement), its own analysis of the Retained Interest, the Acquired Companies and their respective Assets for investment purposes the purpose of acquiring the Retained Interest, and Buyer has had reasonable and sufficient access to documents, other information and materials as it considers appropriate to make its evaluations. Buyer acknowledges that the Retained Interest is not registered pursuant to the Securities Act of 1933 (the “1933 Act”) and that none of the Retained Interest may be transferred, except pursuant to an applicable exception under the 1933 Act and in accordance with a view to, or for offer or sale in connection with, any distribution thereof, (ii) all applicable Laws and the terms of the Charter Documents of the Acquired Companies. Buyer is an “accredited investor” as defined under Section Rule 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration promulgated under the Securities 1933 Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is duly organized, a limited liability company validly existing and in good standing under the Laws laws of the jurisdiction that governs it, State of Texas and has the full entity power is duly qualified to own its properties and authority assets and to carry on its business as now conducted and to own its assetsbeing conducted;
(b) Buyer has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly authorized;
(c) This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by subject to the effects of bankruptcy, insolvency, reorganization, moratorium moratorium, and similar laws affecting creditors' rights. No other similar Laws affecting act, approval or proceeding on the rights part of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority Buyer or any other party is required to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) authorize the execution and delivery of this Agreement by itBuyer or the consummation of the transactions contemplated hereby (other than consents and approvals required under the Trust Agreement or the Administrative Services Agreement);
(d) This Agreement, and the performance execution and delivery hereof by it of its obligations hereunder Buyer, does not and the consummation of the transactions contemplated hereby, hereby will not:
not (i) conflict with or violate its organizational documents;
result in a breach of the governing documents of Buyer, or (ii) require violate any consent, approval, order statute or authorization of or other action by any Governmental Entity law or any registrationjudgment, qualificationdecree, declaration order, writ, injunction, regulation or filing (other than those that have been obtained rule of any court or made and (A) any filings required to be made with governmental authority, which violation might adversely affect the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part ability of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability Buyer to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its AffiliatesAgreement;
(iiie) requireBuyer possesses all required governmental licenses, permits, bonds, certificates, orders, and authorizations necessary to own or operate the Interests;
(f) Buyer will have on the part Closing Date and thereafter, sufficient cash to enable it to make payment in immediately available funds of it, any consent by or approval of or notice to the purchase price when due and any other person or entity amounts to be paid by it hereunder;
(other than a Governmental Entity), the absence or omission of which would, either individually or g) Buyer is an experienced and knowledgeable investor in the aggregate, be materially adverse to, oil and gas business. Buyer is not acquiring the Interests in connection with a distribution or materially delay, Buyer’s ability to perform its obligations under this Agreement resale thereof in violation of federal or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act state securities laws and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated herebythereunder;
(eh) as of the date hereofBuyer has incurred no liability, there is no Proceeding pending orcontingent or otherwise, to its knowledge, threatened, against it for brokers' or finders' fees relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely Agreement for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “which Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;responsibility whatsoever; and
(i) it As of October 15, 1998, Buyer is not bound by the beneficial owner of or subject to any Contract with any person has voting control over 5,867,968 Trust Units ("BRU Units") of BRU, which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation constitutes approximately 66.68145% of the transactions contemplated hereby; and
(j) neither ittotal number of BRU Units reported by BRU to be outstanding as of such date and Buyer will not sell, nor transfer, relinquish voting control over or otherwise dispose of, any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected such BRU Units prior to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementClosing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (San Juan Partners LLC)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is duly organized, a corporation validly existing and in good standing under the Laws laws of the jurisdiction that governs it, State of Texas and has the full entity power is duly qualified to own its properties and authority assets and to carry on its business as now conducted and to own its assetsbeing conducted;
(b) Buyer has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly authorized;
(c) This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by subject to the effects of bankruptcy, insolvency, reorganization, moratorium moratorium, and similar laws affecting creditors' rights. No other similar Laws affecting act, approval or proceeding on the rights part of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority Buyer or any other party is required to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) authorize the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby;
(d) This Agreement, and the execution and delivery hereof by Buyer, does not and the consummation of the transactions contemplated hereby will not (i) conflict with or result in a breach of the charter or bylaws of Buyer or any other governing documents of Buyer, or (ii) violate any statute or law or any judgment, decree, order, writ, injunction, regulation or rule of any court or governmental authority, which violation might adversely affect the ability of Buyer to perform its obligations under this Agreement;
(e) Buyer or its affiliate possesses all required governmental licenses, permits, bonds, certificates, orders, and authorizations necessary to own or operate the Interests;
(f) Buyer has, and will have on the Closing Date and thereafter, sufficient cash to enable it to make payment in immediately available funds of the purchase price when due and any other amounts to be paid by it hereunder;
(g) Buyer is an experienced and knowledgeable investor in the oil and gas business. Buyer is not acquiring the Interests in connection with a distribution or resale thereof in violation of federal or state securities laws and the rules and regulations thereunder; and
(jh) neither itBuyer has incurred no liability, nor any of its Affiliatescontingent or otherwise, owns any interest in any Person that (a) derives a portion of its revenues from products for brokers' or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected finders' fees relating to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of for which Seller shall have any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementresponsibility whatsoever.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Magnum Hunter Resources Inc)
Representations of Buyer. Buyer hereby represents and warrants to each Seller that Seller, as of the date of this Agreement and the Closing Date Date, that:
(ai) it Buyer is duly organized, validly organized and legally existing and in good standing under the Laws laws of the jurisdiction that governs itState of Delaware, and is qualified to do business in the State of Arizona, (ii) the execution and delivery by Buyer of, and Buyer's performance under, this Agreement are within Buyer's powers and have been duly authorized by all requisite corporate, partnership, or limited liability company action, (iii) the assumption of the Existing Financing by Buyer has been duly authorized by all requisite corporate, partnership or limited liability company action, (iv) the person executing this Agreement on behalf of Buyer has the full entity power and authority to carry on do so, (v) no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, dissolution or other similar legal proceedings are pending or, to Buyer's Knowledge, threatened against Buyer and/or any of its business as now conducted direct or indirect equity holders, nor are any such proceedings contemplated by them, and to own (vi) neither Buyer nor any of its assets;direct or indirect equity holders has ever been a debtor under any case commenced under the United States Bankruptcy Code.
(b) The execution, delivery and performance of this Agreement has been duly and validly the assumption of the Existing Financing by Buyer will not violate any provision of any agreement, judicial order, or any applicable law to which Buyer is a party or to which Buyer is a party or by which Buyer or any of the assets comprising the Property may be bound. This Agreement and the other documents and instruments to be executed by Buyer hereunder shall, once executed and delivered by itBuyer, andconstitute legal, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation obligations of it, Buyer enforceable against it Buyer in accordance with the terms hereoftheir terms, except as such enforceability the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other or similar Laws laws affecting the enforcement of creditor's rights generally. No government, internal, or third-party approval or consent which has not already been obtained is required for Buyer's execution and delivery of, or performance of creditors generally and by general principles of equity;obligations under, this Agreement.
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict There is no litigation pending against Buyer that would adversely affect or interfere with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s 's ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it is duly organizedBuyer hereby agrees, validly existing acknowledges and represents that neither Seller nor any person or party on behalf of Seller has made any representation, warranty or covenant, express, implied or statutory, of any kind whatsoever upon which Buyer has relied in good standing under entering into this Agreement or upon which Buyer shall rely in consummating the Laws transaction contemplated by this Agreement (except as set forth in subparagraph 13 of this Agreement). Buyer further agrees, acknowledges and represents to Seller that, subject to the terms and conditions of this Agreement, (i) Buyer has examined the Property and has fully satisfied itself with respect to the Property and the condition and all other aspects and attributes of the jurisdiction that governs itProperty; and
(ii) Buyer is purchasing and shall, on the Closing Date, accept the Property in "as is", "where is" and has the full entity power and authority to carry on its business as now conducted and to own its assets;"with all defects" condition, without any representation, warranty or covenant, express, implied or statutory, of any kind whatsoever.
(b) this Agreement has been duly Buyer further agrees, acknowledges and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter represents that Buyer is entering into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers shall perform all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and consummate the consummation of the transactions transaction contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make solely in reliance on and as a result of Buyer's own investigations and efforts (including Buyer's inspection of the specific legal Property and such other investigations, examinations and inspections as Buyer has chosen to make or regulatory status has made) and at Buyer's sole risk, cost and expense, including, without limitation, the risk that Buyer's inspection of the Property and such other investigations, examinations and inspections may not reveal any or all adverse or existing conditions, aspects or attributes of the Property. Buyer acknowledges (i) that Seller has afforded Buyer the opportunity for full and complete investigation, examination and inspection of the Property or (ii) that Buyer has elected to purchase the Property without making any of its Affiliates such investigation, examination or as inspection. Buyer acknowledges that this paragraph was a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the negotiated part of itthis Agreement and serves as an essential component of consideration for the same. Without limiting the generality of the foregoing, any consent by or approval the parties specifically acknowledge that Buyer has had an opportunity to fully inspect the Property, including, but not limited to, the physical condition of or notice to any other person or entity the Real Property and the Personal Property (other than a Governmental Entityincluding all environmental concerns), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable Purchase Price has been negotiated to the transactions contemplated hereby shall have expired eliminate all claims, whether known or been terminatedunknown, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as condition of the date hereofProperty and all aspects and attributes thereof, and it will have at including, without limitation, all times through environmental matters. Consequently, this clause bars all claims, whether or not presently known, brought by Buyer concerning the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase condition of the Purchased Shares hereunder Property and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed thatall aspects and attributes thereof, specifically including, without limiting limitation, all claims pursuant to the foregoingComprehensive Environmental Response, in no event shall the receipt or availability Compensation and Liability Act of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to1980, or for offer or sale in connection withas amended, any distribution thereofother federal, (ii) is an “accredited investor” as defined under Section 501 of state or local environmental law, rule or regulation or otherwise. Notwithstanding the Securities Actparties' intent that all such claims be barred, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on should a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity court of competent jurisdiction necessary deem otherwise, the presence of this paragraph and the provisions of paragraph 2 hereof are intended by the parties to consummate serve, and shall serve, as the transactions contemplated by this Agreement or the expiration or termination overwhelming, primary factor in any equitable apportionment of any applicable waiting period damages under the HSR Comprehensive Environmental Response, Compensation and Liability Act, (ii) materially increase the risk of as amended, as well as any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreementother federal, state or (iii) prevent the consummation of the transactions contemplated by this Agreementlocal environmental law, rule or regulation or otherwise.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Maxus Realty Trust Inc)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date thatfollows:
(a) it Buyer is a corporation duly organized, validly existing and in good standing under the Laws laws of the jurisdiction that governs it, and State of Delaware. Buyer has the full entity all requisite corporate power and authority to carry on its business as now conducted enter into this Agreement and to own its assets;
(b) consummate the transactions contemplated hereby. All corporate acts and other proceedings required to be taken by Buyer to authorize the 4 of 14 execution, delivery and performance of this Agreement has and the transactions contemplated hereby have been duly and validly properly taken. This Agreement has been, and when executed, will be, duly executed and delivered by it, and, assuming the due execution Buyer and delivery thereof by each other party hereto, is, and will be, a constitutes valid and binding obligation obligations of itBuyer, enforceable against it Buyer in accordance with the its respective terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws laws relating to or affecting the creditors' rights of creditors generally and or by general principles (regardless of equity;whether such enforceability is considered in a proceeding in equity or law).
(b) The execution and delivery of this Agreement does not and will not, and the consummation of the transactions and compliance with the terms of this Agreement will not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or result in the creation of any Lien upon any of the properties or assets of Buyer under, any provision of (i) the Certificate of Incorporation or By-Laws of Buyer, (ii) any Contractual Obligation of Buyer or (iii) except as provided in the Asset Purchase Agreement, any judgment, order or decree or statute, law, ordinance, rule or regulation applicable to Buyer or its property or assets, other than, in the case of clauses (ii) and (iii) above, any such conflicts, violations, defaults, rights or Liens that, individually or in the aggregate, would not have a Material Adverse Effect.
(c) it has full limited liability company power and authority No material consent, approval, license, permit order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other Governmental Authority is required to enter into this Agreement and be obtained or made by or with respect to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest Buyer or its Affiliates in and to the Purchased Shares;
(d) connection with the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and or the consummation by Buyer of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or as provided in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Asset Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date thatfollows:
(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and Buyer has the full all necessary entity power and authority to carry on its business as now conducted execute and to own its assets;
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into deliver this Agreement and to consummate the transactions contemplated hereby. The execution, including to purchasedelivery and performance by Buyer of this Agreement, acquire and accept from Sellers the consummation by Buyer of the transactions contemplated hereby, have been duly authorized by all rightnecessary corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and, title and interest in and to the Purchased Shares;
(d) the assuming due authorization, execution and delivery of this Agreement by itthe other party hereto, the constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(b) The execution, delivery and performance by it Buyer of its obligations hereunder this Agreement do not, and the consummation of the transactions contemplated hereby, hereby and compliance with the provisions of this Agreement will not:
, conflict with, or result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to any right (including a right of termination, cancellation or acceleration of any obligation or any right of first refusal, participation or similar right) under, or cause the loss of any benefit under, or give rise to any right of notice, acceleration or termination under, or result in the creation of any Lien upon any of the properties or assets of Buyer or any of its Subsidiaries under, any provision of (i) conflict with the Organizational Documents of Buyer or violate any of its organizational documents;
Subsidiaries, or (ii) require subject to the filings and other matters referred to in Section 4.1(c) and Section 5.1, any Law applicable to Buyer or any of its Subsidiaries or any of their respective properties or assets, other than, in the case of this clause (ii), any such conflicts, violations, defaults, rights, losses or Liens that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Buyer.
(c) No consent, approval, order or authorization of of, or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to Buyer in connection with the execution, delivery and performance of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated by this Agreement, except for (Aa) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices advisable under the HSR ActAct or any other Antitrust Law and (b) with or without notice to any Governmental Entitysuch other consents, in each case on the part of or with respect to itapprovals, orders, authorizations, registrations, declarations, filings and notices, the absence or omission failure of which wouldto be obtained or made would not, either individually or in the aggregate, reasonably be materially adverse toexpected to have a Material Adverse Effect on Buyer.
(d) Buyer has, or materially delayand at the Closing Date will have, Buyer’s ability available to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect it sources of immediately available funds sufficient to any of the foregoing which Buyer may be pay all amounts required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or be paid in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (connection with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;, including the Purchase Price.
(fe) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares Subject Interests solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Subject Interests are not registered under the Securities Act of 1933, (ii) is an “accredited investor” as defined under Section 501 amended, or any state securities laws, and that the Subject Interests may not be transferred or sold except pursuant to the registration provisions of the Securities ActAct of 1933, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. Buyer is able to bear the economic risk of holding the Subject Interests for an indefinite period (ii) including total loss of its investment), and has such knowledge, sophistication sufficient knowledge and experience in financial and business matters that it is so as to be capable of evaluating the merits and risks risk of entering its investment.
(f) Buyer has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of MOLP, MEP and MEP GP, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of such entities for such purpose. Buyer acknowledges and agrees that: (i) in making its decision to enter into this Agreement and consummating to consummate the transactions contemplated hereby, (iii) (x) is relying on Buyer has relied solely upon its own due diligence investigation and review the express representations and warranties of the business, operations, assets, liabilities, financial condition and prospects Seller set forth in Article III of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, this Agreement; and (zii) acknowledges that none of Sellers makes neither Seller nor any other person has made any representation or warranty of any kind as to Seller, the Subject Interests or this Agreement, except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty Article III of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Enbridge Energy Partners Lp)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Xxxxxx Resources, Inc. is duly organized, a corporation validly existing and in good standing under the Laws laws of the jurisdiction that governs it, State of Colorado and has the full entity power is duly qualified to own its properties and authority assets and to carry on its business as now conducted and to own its assetsbeing conducted;
(b) Buyer has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly authorized;
(c) This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by subject to the effects of bankruptcy, insolvency, reorganization, moratorium moratorium, and similar laws affecting creditors' rights. No other similar Laws affecting act, approval or proceeding on the rights part of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority Buyer or any other party is required to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) authorize the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby;
(d) This Agreement, and the execution and delivery hereof by Buyer, does not and the consummation of the transactions contemplated hereby will not (i) conflict with or result in a breach of the charter or bylaws of Buyer or any other governing documents of Buyer, or (ii) violate any statute or law or any judgment, decree, order, writ, injunction, regulation or rule of any court or governmental authority, which violation might adversely affect the ability of Buyer to perform its obligations under this Agreement;
(e) Buyer possesses all required governmental licenses, permits, certificates, orders and authorizations necessary to own the Interests; and
(jf) neither itBuyer has incurred no liability, nor any of its Affiliatescontingent or otherwise, owns any interest in any Person that (a) derives a portion of its revenues from products for brokers' or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected finders' fees relating to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement for which Seller shall have any responsibility whatsoever.
(g) Buyer has relied upon its own evaluations of written records and other sources, which Buyer deems reliable, and has not, in reviewing and assessing the interests, relied on any oral representations of Seller or the expiration its agents or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementemployees.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants BUYER hereby declares to each Seller that SELLER, as of the signing date below and on the date of this Agreement each supply of the Product, assuming responsibility for the correctness and the Closing Date truthfulness of such representations, that:
(a) it is a duly organized, organized and validly existing and in good standing established joint stock corporation under the Laws laws of the jurisdiction Brazil and that governs it, it has full legal capacity to own and has the full entity power operate its facilities and authority to carry on conduct its business as now conducted at present, and is duly qualified to own its assetsacquire the SELLER’s Product under the terms of this Contract;
(b) it has obtained all the corporate or similar authorizations required to sign this Agreement Contract and to comply with the obligations attributed to it hereunder; CONFIDENTIAL TREATMENT REQUESTED BY COMPANHIA SIDERURGICA NACIONAL 11/34
(c) this Contract has been duly and validly executed and delivered by itBUYER and constitutes a legal, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, insofar as BUYER is concerned and is enforceable against it in accordance with on the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) it is not insolvent, under court protection from creditors, extrajudicial or judicial recovery, and it is neither impeded from paying its obligations and nor has it been declared bankrupt;
(e) neither the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and Contract nor the consummation of the transactions contemplated hereby, and performance of the terms and conditions of this Contract by BUYER will not:
(i) conflict with result in a violation or violate its organizational documents;
breach of or default under any provision of the by-laws of BUYER; (ii) require any consent, approval, order will result in a violation or authorization breach of or default under any provision of any agreement, indenture or other action instrument under which BUYER is bound; or (iii) violate any Applicable Law of or by any Governmental Entity Authority which may negatively affect or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with prevent the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part performance of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreementhereunder;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (been and will have at continue to be in full compliance with all Applicable Law related to the Closingperformance of this Contract, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder including without limitation those regarding tax, environmental, labor and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder)social security matters;
(g) it (i) is acquiring the Purchased Shares solely has obtained and will keep all licenses, permits and authorizations required for its own account for investment purposes operation and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 the performance of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;Contract; and
(h) it (i) has there is no court or had access to all information that it believes to be necessaryadministrative litigation, sufficient action, suit, proceeding, condemnation, investigation, claim, audit, order, decision, decree, writ, judgment, injunction, determination or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition award or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and any arbitration proceeding that may be material prevent, limit or affect BUYER’s ability to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor perform any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by obligations under this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementContract.
Appears in 1 contract
Samples: Supply Contract (National Steel Co)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:: ------------------------
(a) it Buyer is a corporation duly organizedorganized and legally existing under the laws of the State of Delaware, validly existing and is qualified to do business and is in good standing under the Laws in each of the jurisdiction that governs it, and has states in which the full entity power and authority Assets are located where the laws of such state would require a corporation owning the Assets located in such state to carry on its business as now conducted and qualify to own its assets;do business.
(b) Buyer has full power to enter into and perform its obligations under this Agreement and has been duly taken all proper action to authorize entering into this Agreement and validly executed and delivered by itperformance of its obligations hereunder, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;upon obtaining Board approval pursuant to Section 9(c) below.
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) Neither the execution and delivery of this Agreement by itAgreement, the performance by it of its obligations hereunder and nor the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) nor the compliance with and filings and/or notices the terms hereof, will result in any default under the HSR Act) with any agreement or without notice instrument to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by which the Assets are bound, or violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer or to which it, its properties or its assets may be subject, bound or affected or the Assets.
(yd) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act This Agreement and the rules Conveyance provided for herein to be delivered at Closing will, when executed and regulations promulgated thereunder delivered, constitute the legal, valid and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by bankruptcy or other laws applicable generally to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) creditor's rights and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;limited by general equitable principles.
(e) as of the date hereofThere are no pending suits, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view toactions, or for offer or sale other proceedings in connection with, any distribution thereof, (ii) which Buyer is an “accredited investor” as defined under Section 501 a party which affect the execution and delivery of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and.
(jf) neither itBuyer is a knowledgeable purchaser, nor owner and operator of oil and gas properties, has the ability to evaluate oil and gas properties, and in fact has evaluated the Assets for purchase, and is acquiring the Assets based upon its own evaluation, and for its own account and not with the intent to make a distribution within the meaning of the Securities Act of 1933 (and the rules and regulations pertaining thereto) or a distribution thereof in violation of any other applicable securities laws.
(g) With regard to those Assets which Buyer seeks to operate, Buyer is qualified to operate such Assets under the applicable laws, rules and regulations of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets jurisdiction in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining ofsuch Assets are located, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementwill become so qualified before operating such Assets.
Appears in 1 contract
Representations of Buyer. Buyer Bxxxx represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(ai) it Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assets;Israel.
(bii) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it Buyer has full limited liability company corporate power and authority to enter into this Agreement and to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby, including to purchase, acquire hereby and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the thereby. The execution and delivery by Bxxxx of this Agreement by it, and the performance by it Bxxxx of its obligations hereunder have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and the consummation delivered by Bxxxx, and constitutes a legal, valid and binding obligation of the transactions contemplated herebyBuyer enforceable against Buyer in accordance with its terms.
(iii) The execution, delivery and performance by Buyer of this Agreement do not and will not:
: (ia) conflict with or violate its result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents;
documents of Buyer; (iib) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer; or (c) require any the consent, approval, order or authorization of notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Entity or any registration, qualificationOrder, declaration or filing (other than those that have been obtained with, or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to to, any Governmental Entity, in each case on the part of Authority is required by or with respect to it, Buyer in connection with the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; orexecution and
(iv) result (with No broker, finder or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it investment banker is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition entitled to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view tobrokerage, finder’s or for offer other fee or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate commission in connection with the transactions contemplated by this AgreementAgreement based upon arrangements made by or on behalf of Bxxxx.
(v) There are no Actions pending or, (ii) acknowledges to Bxxxx’s knowledge, threatened against or by Buyer or any Affiliate of Buyer that in the Sellers and/or their Affiliates may haveaggregate seek damages or other relief in excess of $50,000 or challenge or seek to prevent, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition enjoin or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and otherwise delay the transactions contemplated by this Agreement;. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.
(ivi) it Buyer is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s feesnot, brokerage or agent’s commissions or other like payments in connection with and immediately following the negotiations leading to this Agreement or the consummation closing of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions transaction contemplated by this Agreement will not, be subject to any financing, loan, security interest or other agreement that would grant a third party any security interests or other interest in the expiration or termination of any applicable waiting period under Purchased Assets.
(vii) Buyer shall assume and agree to pay, perform and discharge the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementAssumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (GameSquare Holdings, Inc.)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is a corporation duly organizedorganized and legally existing under the laws of the State of Delaware, validly existing and is qualified to do business and is in good standing under the Laws in each of the jurisdiction that governs it, and has states in which the full entity power and authority Assets are located where the laws of such state would require a corporation owning the Assets located in such state to carry on its business as now conducted and qualify to own its assets;do business.
(b) Buyer has full power to enter into and perform its obligations under this Agreement and has been duly taken all proper action to authorize entering into this Agreement and validly executed and delivered by itperformance of its obligations hereunder, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;upon obtaining Board approval pursuant to Section 9(c) below.
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) Neither the execution and delivery of this Agreement by itAgreement, the performance by it of its obligations hereunder and nor the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) nor the compliance with and filings and/or notices the terms hereof, will result in any default under the HSR Act) with any agreement or without notice instrument to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by which the Assets are bound, or violate any order, writ, injunction, decree, statute, rule or regulation applicable to Buyer or to which it, its properties or its assets may be subject, bound or affected or the Assets.
(yd) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act This Agreement and the rules Conveyance provided for herein to be delivered at Closing will, when executed and regulations promulgated thereunder delivered, constitute the legal, valid and binding obligation of Buyer, enforceable in accordance with its terms, except as limited by bankruptcy or other laws applicable generally to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) creditor's rights and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;limited by general equitable principles.
(e) as of the date hereofThere are no pending suits, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view toactions, or for offer or sale other proceedings in connection with, any distribution thereof, (ii) which Buyer is an “accredited investor” as defined under Section 501 a party which affect the execution and delivery of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and.
(jf) neither itBuyer is a knowledgeable purchaser, nor owner and operator of oil and gas properties, has the ability to evaluate oil and gas properties, and in fact has evaluated the Assets for purchase, and is acquiring the Assets based upon its own evaluation, and for its own account and not with the intent to make a distribution within the meaning of the Securities Act of 1933 (and the rules and regulations pertaining thereto) or a distribution thereof in violation of any other applicable securities laws.
(g) With regard to those Assets which Buyer seeks to operate, Buyer is qualified to operate such Assets under the applicable laws, rules and regulations of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets jurisdiction in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining ofsuch Assets are located, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementwill become so qualified before operating such Assets.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller the Sellers that the following are true as of the date of this Agreement and the Closing Date thatEffective Date:
(a) it a. Buyer is a corporation duly organized, validly existing and in good standing under the Laws laws of the jurisdiction that governs it, and State of Nevada.
b. Buyer has the full entity corporate power and authority to carry on its business as now conducted execute and deliver this Agreement and each other agreement, document, instrument or certificate provided for by this Agreement or to be executed by Buyer in connection with the consummation of the transactions provided for hereby and thereby and to own its assets;
(b) consummate the transactions provided for hereby and thereby. The execution, delivery and performance by Buyer of this Agreement has been duly and validly executed and delivered authorized by it, and, assuming all necessary corporate action on behalf of Buyer.
c. None of the due execution and delivery thereof by each other party heretoBuyer of this Agreement, is, and will be, a valid and binding obligation the consummation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated herebyprovided for hereby or thereby, including or the compliance by Buyer with any of the provisions hereof or thereof will conflict with, or result in violation of or default (with or without notice or lapse of time, or both) under, or give rise to purchasea right of termination or cancellation under any provision of (i) the Buyer’s certificate of formation, acquire bylaws, or comparable organizational documents of Buyer; (ii) any contract or permit to which Buyer is a party or by which any of the properties or assets of Buyer are bound; (iii) any order of any governmental body applicable to Buyer or by which any of the properties or assets of Buyer are bound; or (iv) any applicable Law.
d. No consent, waiver, approval, order, permit or authorization of, or declaration or filing with, or notification to, any Person or governmental body other than the consent of a majority of the shareholders of Buyer and accept from Sellers all right, title and interest the board of directors of Buyer is required on the part of Buyer in and to the Purchased Shares;
(d) connection with the execution and delivery of this Agreement or the compliance by it, the performance by it of its obligations hereunder and the consummation Buyer with any of the transactions contemplated herebyprovisions hereof or thereof, will except for such consents, waivers, approvals, orders, Permits, declarations, filings or notifications that, if not obtained, made or given, would not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially have a material adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, effect on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated provided for by this Agreement.
Appears in 1 contract
Samples: Membership Interest Sale Agreement (Glimpse Group, Inc.)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:: -------------------------
(a) it Buyer is duly organized, a corporation validly existing and in good standing under the Laws underthe laws of the jurisdiction that governs it, State of Montana and has the full entity power is duly qualified to own its properties and authority assets and to carry on its business as now conducted and to own its assetsbeing conducted;
(b) Buyer has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly authorized;
(c) This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by subject to the effects of bankruptcy, insolvency, reorganization, moratorium moratorium, and similar laws affecting creditors' rights. No other similar Laws affecting act, approval or proceeding on the rights part of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority Buyer or any other party is required to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) authorize the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby;
(d) This Agreement, and the execution and delivery hereof by Buyer, does not and the consummation of the transactions contemplated hereby will not (i) conflict with or result in a breach of the charter or bylaws of Buyer or any other governing documents of Buyer, or (ii) violate any statute or law or any judgment, decree, order, writ, injunction, regulation or rule of any court or governmental authority, which violation might adversely affect the ability of Buyer to perform its obligations under this Agreement;
(e) Buyer possesses all required governmental licenses, permits, bonds, certificates, orders, and authorizations necessary to own or operate the Interests;
(f) Buyer has, and will have on the Closing Date and thereafter, sufficient cash to enable it to make payment in immediately available funds of the purchase price when due and any other amounts to be paid by it hereunder;
(g) Buyer is an experienced and knowledgeable investor in the oil and gas business. Buyer is not acquiring the Interests in connection with a distribution or resale thereof in violation of federal or state securities laws and the rules and regulations thereunder; and
(jh) neither itBuyer has incurred no liability, nor any of its Affiliatescontingent or otherwise, owns any interest in any Person that (a) derives a portion of its revenues from products for brokers' or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected finders' fees relating to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of for which Seller shall have any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementresponsibility whatsoever.
Appears in 1 contract
Samples: Purchase and Sale Agreement (St Mary Land & Exploration Co)
Representations of Buyer. Buyer represents and warrants to each Seller that and DWA, as of the date of this Agreement and the Closing Date thatDate, as follows:
(a) it Buyer is a limited liability company duly organized, validly existing organized and in good standing under the Laws laws of the jurisdiction that governs itState of Delaware and has duly qualified and is in good standing under the laws of the State of California, and has the full entity all requisite power and authority to carry on enter into, and perform its business as now conducted obligations under, this Agreement and to own its assets;any other documents contemplated by this Agreement, including, without limitation, acquiring and leasing the Property.
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due The execution and delivery thereof of this Agreement and the Lease by each Buyer and the consummation of the transactions contemplated hereby and thereby (i) have been duly authorized by all necessary action on the part of Buyer, (ii) do not require any governmental or other consent and (iii) will not result in the breach of Buyer’s organizational documents or any agreement, indenture or other instrument to which Buyer is a party heretoor is otherwise bound or any violation of any law, isrule, regulation or judgment to which Buyer or any of its property is subject. This Agreement and will bethe Lease constitute the legal, a valid and binding obligation obligations of itBuyer, enforceable against it in accordance with the terms hereoftheir respective terms, except as such enforceability enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and or other similar Laws laws affecting the enforcement of creditors’ rights of creditors generally generally, and by general principles of equity;equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement by it, the performance by it Neither Buyer nor any of its obligations hereunder and the consummation affiliates is in violation of the transactions contemplated hereby, will not:
(i) conflict with any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or violate its organizational documents;
any enabling legislation or executive order relating thereto, (ii) require any consentExecutive Order No. 13,224, approval66 Fed Reg 49,079 (2001), order issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or authorization Support Terrorism) or (iii) the anti-money laundering provisions of or other action by any Governmental Entity the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq or any registrationother laws relating to terrorism or money laundering. Notwithstanding anything to the contrary in this subparagraph (c), qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is being made herein with respect to any direct or indirect owner of the foregoing which Buyer may be required to obtain, give or make as a result whose ownership interest consists of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) stock in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance publicly traded company on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementnationally recognized stock exchange.
Appears in 1 contract
Samples: Purchase Agreement (DreamWorks Animation SKG, Inc.)
Representations of Buyer. Buyer represents makes the following ------------------------ representations to Seller, each of which shall survive the execution and warrants to each Seller that as of the date delivery of this Agreement and the Closing Date thatAgreement:
(a) it Buyer is a corporation duly organized, validly existing and in good standing under the Laws laws of the jurisdiction that governs it, State of Delaware and has the full entity all requisite corporate power and authority necessary to carry on enter this Agreement and all other documents contemplated hereby (the "Sale Documents"), to perform its business as now conducted obligations hereunder and thereunder, and to own its assets;consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement has and the other Sale Documents and the consummation of the transactions contemplated hereby and thereby, have been duly and validly executed authorized by all necessary corporate action on the part of Buyer; and delivered by it, and, assuming the due execution each of this Agreement and delivery thereof by each other party heretoSale Document is a legal, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereofits terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and reorganization or other similar Laws laws affecting creditors' rights generally or by equitable limitations on the rights availability of creditors generally remedies. The execution, delivery and by general principles performance of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the execution and delivery of this Agreement other Sale Documents by it, the performance by it of its obligations hereunder Buyer and the consummation by Buyer of the transactions contemplated herebyhereby and thereby, will not:
not (i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of any provisions of the terms Certificate of Incorporation or conditions ofBy-Laws of Buyer; (ii) violate the provisions of any agreement or contract (A) binding upon Buyer or (B) which affects the Aircraft and to which Seller is not a party; or (iii) violate any statute, a default underrule, a conflict regulation, judgment, order, writ, injunction or decree of any court, administrative agency or governmental body (A) applicable to Buyer or (B) which affects the Aircraft and is not solely applicable to Seller.
(c) No filing with, or permit, authorization, consent or approval of, any governmental authority or agency or third party is necessary for the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing consummation by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations other than the filing with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale Federal Aviation Administration of the Purchased Shares by FAA Xxxx of Sale and the Sellers was privately negotiated in an independent transaction, (y) Application for Registration of the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;Aircraft.
(hd) it (i) Buyer has not employed any broker or had access to all information that it believes to be necessaryfinder or incurred any liability for brokerage fees, sufficient commissions or appropriate finder's fees in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, Agreement and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases for any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;such fees or commissions.
(ie) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s feesAll state and local sales, brokerage or agent’s commissions use or other like payments in connection with the negotiations leading taxes required to this Agreement or be paid as a result of the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated described herein have been paid by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementBuyer.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is duly organized, a corporation validly existing and in good standing under the Laws laws of the jurisdiction that governs it, State of Utah and has the full entity power is duly qualified to own its properties and authority assets and to carry on its business as now conducted and to own its assetsbeing conducted;
(b) Buyer has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by Buyer and the consummation of the transactions contemplated hereby have been duly authorized;
(c) This Agreement has been duly and validly executed and delivered by it, and, assuming Buyer and constitutes the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of itBuyer, enforceable against it in accordance with the terms hereof. No other act, except as such enforceability may be limited by bankruptcyapproval, insolvency, reorganization, moratorium and or proceeding on the part of Buyer or any other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority party is required to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) authorize the execution and delivery of this Agreement by it, the performance by it of its obligations hereunder and the consummation of the transactions contemplated hereby, will not:
(i) conflict with or violate its organizational documents;
(ii) require any consent, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and;
(jd) neither itThis Agreement, nor any and the execution and delivery hereof by Buyer, does not and the consummation of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that transactions contemplated hereby will not (i) would reasonably be expected to impose conflict with or result in a breach of the charter or bylaws of Buyer or any material delay in the obtaining ofother governing documents of Buyer, (ii) violate any statute or law or any judgment, decree, order, writ, injunction, regulation, or material risk of not obtaining, any consent, authorization, order or approval rule of any Governmental Entity court or governmental authority, which violation might materially and adversely affect the ability of competent jurisdiction necessary Buyer to consummate perform its obligations under this Agreement;
(e) Buyer has incurred no liability, contingent or otherwise, for brokers' or finders' fees relating to the transactions contemplated by this Agreement or the expiration or termination of for which Seller shall have any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.responsibility whatsoever;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Environmental Remediation Holding Corp)
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date that:
(a) it Buyer is a corporation duly organized, validly existing and in good standing under the Laws laws of the jurisdiction that governs it, and state of Minnesota. Buyer has the full entity necessary corporate power and authority to carry on its business as now conducted execute, deliver, and to own its assets;perform this Agreement and the transactions contemplated hereby.
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due The execution and delivery thereof of this Agreement and the performance by each Buyer and the consummation of the transactions contemplated hereunder have been duly authorized by the board of directors of Buyer and no other corporate proceedings on the part of Buyer are necessary to authorize this Agreement and the transactions contemplated hereunder. No consent of any person not a party heretoto this Agreement nor consent of or filing with any governmental entity is required to be obtained or performed on the part of Buyer to execute, isdeliver, and will be, a perform its obligations hereunder. This Agreement constitutes the legally valid and binding obligation of it, Buyer enforceable against it Buyer in accordance with the terms hereofits terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the laws and equitable principles relating to or limiting creditor’s rights of creditors generally and by general principles of equity;generally.
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) Neither the execution and the delivery of this Agreement by itAgreement, the performance by it of its obligations hereunder and nor the consummation of the transactions contemplated herebyhereby (including performance by Buyer), will not:
(i) conflict with violate any constitution, statute, regulation, rule, order, decree, charge, or violate its organizational documents;
other restriction of any governmental entity to which Buyer is subject or any provision of the charter or bylaws of Buyer or (ii) require any consentconflict with, approval, order or authorization of or other action by any Governmental Entity or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, constitute a default under, a conflict with, or the acceleration of (or the creation result in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase , create in any payment required by itparty the right to accelerate, terminate, modify, or the terminationcancel, suspensionor require any notice under any agreement, modificationcontract, impairment lease, license, instrument or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment other arrangement to which it Buyer is a party or by which it is bound or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to assets is subject (or result in the imposition of any encumbrance upon any of its assets), except where the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view toviolation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice, or for offer encumbrance could not reasonably be expected to have a material adverse effect on Buyer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 on the ability of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision parties to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and Agreement.
(viiid) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance Buyer files reports with the Securities Act;
(h) it (i) has or had access to all information that it believes to be necessaryand Exchange Commission under Section 13 of the Securities Exchange Act of 1934, sufficient or appropriate in connection with which includes Buyer’s annual report on Form 10-KSB for fiscal year ended June 30, 2005, quarterly reports on Form 10-QSB for the transactions contemplated by this Agreementquarterly periods ended September 30 and December 31, (ii) acknowledges that the Sellers and/or their Affiliates may have2005, and may later come in possession ofcurrent report on Form 8-K dated October 19, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares 2005 (the “Seller Excluded InformationSEC Reports”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge . None of the Seller Excluded InformationSEC Reports, and (iv) agrees that when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the Sellers shall have no liability to Buyerstatements made therein, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale light of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is circumstances under which they were made, not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreementmisleading.
Appears in 1 contract
Representations of Buyer. Buyer represents and warrants to each Seller that as of the date of this Agreement and the Closing Date thatfollows:
(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and Buyer has the full entity power and authority taken all necessary action to carry on its business as now conducted and to own its assets;
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) approve the execution and delivery of this Agreement by it, and prior to the closing shall take all action necessary to approve the performance by it of its obligations hereunder this Agreement and the consummation of the transactions transaction contemplated hereby, will not:
(i) conflict herein. This Agreement constitutes a valid and binding obligation of Buyer in accordance with or violate its organizational documentsterms;
(iib) require any consentBuyer enters into this Agreement in full reliance upon its independent investigation and judgment, approval, order or authorization of and there are no verbal or other action by any Governmental Entity agreements which modify or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by or to which it, its properties or its assets may be subject, bound or affected or (y) any applicable Law, assuming all required notifications and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by affect this Agreement;
(fc) it has as of the date hereofNo further representations, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have at the Closing, access to sufficient unrestricted funds) to consummate the purchase of the Purchased Shares hereunder and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt guarantees or availability promises of any funds kind concerning the Real Property or financing by Buyer or any of its Affiliates be a condition to any of the obligations of Buyer hereunder);
(g) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of entering into this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions have been made by Sellers, any of their Affiliates, Seller or any Person representing or anyone acting on behalf of Sellers with respect Seller, except as provided in this Agreement. All agreements as to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the CompanyReal Property are contained in this Agreement and Buyer is not relying upon any statements, Holdings and their respective subsidiaries express or the value of the Purchased Sharesimplied warranties, (iv) has previously undertaken such independent investigation of the Company and Holdings as representations, guarantees, promises or information not contained in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has whether made its own decision by Seller or by any person representing or claiming to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by the Sellers was privately negotiated in an independent transaction, (y) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Actrepresent Seller;
(hd) it (i) Buyer agrees to take the Real Property “AS IS” with its faults, if any, as of the closing date and will not claim that Seller has made any promises, warranties or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect representations as to the business, operations, assets, liabilities, financial condition or prospects of the CompanyReal Property, Holdings and their respective subsidiaries it being understood by Buyer that is not known to Buyer and that may any such promises, warranties or representations must be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information contained in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading to this Agreement or the consummation of the transactions contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining of, or material risk of not obtaining, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this Agreement.
(e) Until the entire Purchase Price is paid in full, Buyer shall keep the Real Property insured against all risks of loss or damage from every cause whatsoever for not less than the full replacement value thereof, as determined by the parties. All of said insurance shall be with standard and reliable insurance companies. Buyer shall pay the premiums therefore and deliver said policy or policies, or duplicates or certificates thereof, to Seller from time to time as requested by Seller. Said policy or policies shall provide that any loss payable thereunder shall be payable jointly to Seller, and shall contain a provision requiring written notice to Seller at least ten (10) days prior to cancellation;
Appears in 1 contract
Samples: Purchase Agreement
Representations of Buyer. 8.1 Buyer represents to Seller as to the following matters, and warrants shall be deemed to each Seller that remake all of the following representations as of the date of this Agreement and the Closing Date thatClosing:
(a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction that governs it, and has the full entity power and authority to carry on its business as now conducted and to own its assets;
(b) this Agreement has been duly and validly executed and delivered by it, and, assuming the due execution and delivery thereof by each other party hereto, is, and will be, a valid and binding obligation of it, enforceable against it in accordance with the terms hereof, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting the rights of creditors generally and by general principles of equity;
(c) it has full limited liability company power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including to purchase, acquire and accept from Sellers all right, title and interest in and to the Purchased Shares;
(d) the The execution and delivery of this Agreement by itBuyer, the performance execution and delivery of every other document and instrument delivered pursuant hereto by it or on behalf of its obligations hereunder Buyer (including, without limitation the Assumption of Loan, and the consummation of the transactions transaction contemplated herebyhereby have been duly authorized and validly executed and delivered by Buyer, and will not:
not (i) conflict with constitute or violate its organizational documents;
(ii) require any consent, approval, order or authorization result in the breach of or other action by default under any Governmental Entity oral or any registration, qualification, declaration or filing (other than those that have been obtained or made and (A) any filings required written agreement to be made with the SEC under the Securities Act or the Exchange Act and (B) the compliance with and filings and/or notices under the HSR Act) with or without notice to any Governmental Entity, in each case on the part of or with respect to it, the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; provided, however, that no representation or warranty is made with respect to any of the foregoing which Buyer may be required to obtain, give or make as a result of the specific legal or regulatory status of any Seller or any of its Affiliates or as a result of any other facts that specifically relate to any Seller or any of its Affiliates;
(iii) require, on the part of it, any consent by or approval of or notice to any other person or entity (other than a Governmental Entity), the absence or omission of which would, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby; or
(iv) result (with or without notice, lapse of time or otherwise) in a breach of the terms or conditions of, a default under, a conflict with, or the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation by it or any increase in any payment required by it, or the termination, suspension, modification, impairment or forfeiture (or the creation in any Person of any right to cause the termination, suspension, modification, impairment or forfeiture) of any material rights or privileges of it under (x) any Contract or any Judgment to which it is a party or by which affects the Property; (ii) constitute or result in a violation of any order, decree, or injunction with respect to which itthe Buyer is bound and/or; (iii) cause or entitle any Person to have a right to accelerate or declare a default under any oral or written agreement to which Buyer is a party. This Agreement constitutes, its properties or its assets may be subjectand, bound or affected or (y) any applicable Law, assuming all required notifications when executed and filings are made under the HSR Act and any waiting period (and any extension thereof) under the HSR Act and the rules and regulations promulgated thereunder applicable to the transactions contemplated hereby shall have expired or been terminated, in each case of clause (x) and (y), other than any such Violations as would not, either individually or in the aggregate, be materially adverse to, or materially delay, Buyer’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby;
(e) as of the date hereof, there is no Proceeding pending or, to its knowledge, threatened, against it relating to the transactions contemplated by this Agreement;
(f) it has as of the date hereof, and it will have at all times through the Closing, access to sufficient unrestricted assets (and will have delivered at the Closing, access to sufficient unrestricted funds) to consummate such other agreements, documents and instruments executed by or on behalf of Buyer will constitute, the purchase of the Purchased Shares hereunder legal, valid and the transactions contemplated by the Other Stock Purchase Agreements (it being agreed that, without limiting the foregoing, in no event shall the receipt or availability of any funds or financing by Buyer or any of its Affiliates be a condition to any of the binding obligations of Seller, as the case may be, enforceable against Buyer hereunder);in accordance with their respective terms.
(gb) it (i) is acquiring the Purchased Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof, (ii) is an “accredited investor” as defined under Section 501 of the Securities Act, (ii) has such knowledge, sophistication and experience in financial and business matters that it is capable of evaluating the merits and risks of The entering into of this Agreement and consummating the transactions contemplated hereby, (iii) (x) is relying on its own due diligence and review consummation of the business, operations, assets, liabilities, financial condition and prospects of the Company, Holdings and their respective subsidiaries and value of the Purchased Shares, (y) has not relied on any assertions made by Sellers, any of their Affiliates, or any Person representing or acting on behalf of Sellers with respect to the foregoing, and (z) acknowledges that none of Sellers makes any representation or warranty of any kind except as expressly set forth in Section 1.2, and Sellers specifically make no representation or warranty of any kind regarding the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries or the value of the Purchased Shares, (iv) has previously undertaken such independent investigation of the Company and Holdings as in its judgment is appropriate to make an informed decision with respect to the transactions contemplated by this Agreement, (vii) has made its own decision to consummate the transactions contemplated by this Agreement based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it has deemed necessary, and (viii) acknowledges that (x) the sale of the Purchased Shares by Property will not require Buyer to obtain (either before or after the Sellers was privately negotiated in an independent transaction, (yClosing) the Purchased Shares are being sold by the Sellers in reliance on a private placement exemption from registration under the Securities Act, and (z) the Purchased Shares will bear customary restricted legends limiting their transfer in compliance with the Securities Act;any Permit.
(hc) it (i) has or had access to all information that it believes to be necessary, sufficient or appropriate in connection with the transactions contemplated by this Agreement, (ii) acknowledges that the Sellers and/or their Affiliates may have, and may later come in possession of, information with respect to the business, operations, assets, liabilities, financial condition or prospects of the Company, Holdings and their respective subsidiaries that is not known to Buyer and that may be material to a decision to acquire the Purchased Shares (the “Seller Excluded Information”), (iii) has determined to acquire the Purchased Shares notwithstanding its lack of knowledge of the Seller Excluded Information, and (iv) agrees that the Sellers shall have no liability to Buyer, and Buyer waives and releases any claims that it might have against the Sellers, with respect to the non-disclosure of any Seller Excluded Information in connection with the sale of the Purchased Shares and the transactions contemplated by this Agreement;
(i) it is not bound by or subject to any Contract with any person which will result in any Seller being obligated to pay any finder’s fees, brokerage or agent’s commissions or other like payments in connection with the negotiations leading All action required pursuant to this Agreement or necessary to effectuate the consummation of the transactions transaction contemplated hereby; and
(j) neither it, nor any of its Affiliates, owns any interest in any Person that (a) derives a portion of its revenues from products or (b) is developing products, services, technologies, intellectual property or other know-how in the same markets in which the Company, Holdings and their respective subsidiaries operate that (i) would reasonably be expected to impose any material delay in the obtaining ofherein has been, or material risk of not obtainingwill be, any consent, authorization, order or approval of any Governmental Entity of competent jurisdiction necessary to consummate the transactions contemplated taken promptly and in good faith by this Agreement or the expiration or termination of any applicable waiting period under the HSR Act, (ii) materially increase the risk of any Governmental Entity of competent jurisdiction entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or (iii) prevent the consummation of the transactions contemplated by this AgreementBuyer.
Appears in 1 contract
Samples: Real Estate Purchase Agreement (Lsi Industries Inc)
