Representations, Warranties and Agreements of the Purchasers. Each Purchaser, represents and warrants to, and agrees with, the Company, severally and not jointly and with respect to only itself (except with respect to the representation and warranty set forth in Section 6(f) which shall only be made by Xxxxxx Brothers Inc.), as follows: (a) Such Purchaser is knowledgeable, sophisticated and experienced in business and financial matters and qualifies as an "accredited investor" as defined in Rule 501(a) of Regulation D and as a "qualified institutional buyer" as defined in Rule 144A under the Securities Act. (b) Such Purchaser has been afforded access to information about the Company and the financial condition, results of operations, business, property, management and prospects of the Company sufficient to enable it to evaluate its investment in the Securities. Such Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Neither such access or questions nor any other due diligence investigations conduction by such Purchaser or its advisors, if any, or representatives shall modify, amend or affect such Purchaser's right to rely on the Company's representations, warranties and agreements contained in this Agreement, the Indenture, the Registration Rights Agreement and the Securities. (c) Such Purchaser understands that its investment in the Securities involves a high degree of risk. Such Purchaser is able to bear the economic risk of its investment in the Securities and is presently able to afford the complete loss of such investment. (d) Such Purchaser is acquiring the Securities solely for its own account and not as a nominee or agent for any other person and not with a view to any distribution thereof that violates the Securities Act or the securities laws of any State of the United States or any applicable jurisdiction; provided, however, that by making the representations herein, such Purchaser does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. (e) Xxxxxx Brothers Inc. has not offered or sold the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising in the United States. (f) Such Purchaser has all necessary power and authority to execute and deliver this Agreement and perform its obligations hereunder; and this Agreement and the transactions contemplated hereby have been duly authorized by such Purchaser; assuming due authorization, execution and delivery by the Company, this Agreement constitutes a legally valid and binding agreement of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally. (g) Such Purchaser is a resident of that jurisdiction specified in its address for notices set forth below the signature of such Purchaser where it appears on the signature page(s) of this Agreement. (h) Such Purchaser is not acquiring the Securities with assets of any "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended. (i) Assuming the capitalization of the Company set forth in its most recent report filed under the Exchange Act, such Purchaser, together with its "affiliates" (as defined in Rule 144 promulgated under the Securities Act), is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of not more than 4.9% of the outstanding shares of Common Stock immediately after the purchase of the Securities hereunder. The Company and, for purposes of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to the Company, General Counsel to the Company and counsel to the Purchasers, will rely upon the accuracy and truth of the foregoing representations as to factual matters and agreements and each Purchaser hereby consents to such reliance.
Appears in 1 contract
Samples: Purchase Agreement (Pg&e Corp)
Representations, Warranties and Agreements of the Purchasers. Each Purchaser, Purchaser represents and warrants warrants, severally but not jointly, to, and agrees with, the Company, severally and not jointly and with respect to only itself (except with respect to the representation and warranty set forth in Section 6(f) which shall only be made by Xxxxxx Brothers Inc.)Corporation that, as followsof the date hereof, and as of the Closing Date:
(a) Such Purchaser is knowledgeable, sophisticated and experienced in business and financial matters and qualifies as an "accredited investor" as defined in Rule 501(a) of Regulation D and as a "qualified institutional buyer" as defined in Rule 144A under the Securities Act.
(b) Such Purchaser has been afforded access to information about the Company and the financial condition, results of operations, business, property, management and prospects of the Company sufficient to enable it to evaluate its investment in the Securities. Such Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Neither such access or questions nor any other due diligence investigations conduction by such Purchaser or its advisors, if any, or representatives shall modify, amend or affect such Purchaser's right to rely on the Company's representations, warranties and agreements contained in this Agreement, the Indenture, the Registration Rights Agreement and the Securities.
(c) Such Purchaser understands that its investment in the Securities involves a high degree of risk. Such Purchaser is able to bear the economic risk of its investment in the Securities and is presently able to afford the complete loss of such investment.
(d) Such Purchaser is acquiring the Securities solely for its own account and not as a nominee or agent for any other person and not with a view to any distribution thereof that violates the Securities Act or the securities laws of any State of the United States or any applicable jurisdiction; provided, however, that by making the representations herein, such Purchaser does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
(e) Xxxxxx Brothers Inc. has not offered or sold the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising in the United States.
(f) Such Purchaser has all necessary full power and authority to execute and deliver enter into this Agreement and perform its obligations hereunder; and this Agreement and and, assuming the transactions contemplated hereby have been duly authorized by such Purchaser; assuming due authorization, execution and delivery of this Agreement by the CompanyCorporation, this Agreement constitutes a legally valid and legally binding agreement obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' creditor’s rights generally, and general equitable principles (whether considered in a proceeding in equity or at law).
(b) Such Purchaser (i) is duly organized, validly existing and in good standing in its jurisdiction of incorporation or organization and has all the requisite power and authority to purchase such Purchaser’s Funded Shares, as provided herein, and (ii) its purchase of such Purchaser’s Funded Shares has been duly authorized by all necessary action on behalf of such Purchaser.
(c) Such Purchaser is purchasing its Funded Shares for such Purchaser’s own account and not with a view to or for sale in connection with any distribution thereof in a transaction that would violate or cause a violation of the 1933 Act or the securities laws of any state or any other applicable jurisdiction.
(d) Such Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the 1933 Act and understands and acknowledges that the offer and sale of the Funded Shares to such Purchaser hereunder have not been registered under the 1933 Act or any state securities law in reliance on the availability of an exemption from such registration requirements of the 1933 Act based in part on the accuracy of such Purchaser’s representations in this Section.
(e) In the normal course of such Purchaser’s business or affairs, such Purchaser invests in or purchases securities similar to the Common Stock and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing its Funded Shares. Such Purchaser has had access to such financial and other information concerning the Corporation and its Subsidiaries as such Purchaser deemed necessary or desirable in making a decision to purchase its Funded Shares, and has had an opportunity to ask questions and receive answers from officers of the Corporation and to obtain additional information (to the extent the Corporation possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to such Purchaser or to which such Purchaser had access.
(f) Such Purchaser is not relying on the Corporation or any of its affiliates with respect to an analysis or consideration of the terms of or economic considerations relating to an investment in the Common Stock. In regard to such considerations and analysis, such Purchaser has relied on the advice of, or has consulted with, its own advisors. Nothing herein shall limit the Corporation’s representations and warranties set forth in Section 3.1.
(g) Such Purchaser acknowledges and is aware that there are substantial restrictions on the transferability of the shares of Common Stock purchased hereunder. Such Purchaser understands that such shares have not been registered under the 1933 Act and are “restricted securities, within the meaning of Rule 144 of the 1933 Act, and may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom. Furthermore, such Purchaser acknowledges that the shares of Common Stock purchased hereunder will bear a resident of that jurisdiction specified in its address for notices legend to the effect set forth below below, and such Purchaser covenants that, except to the signature extent such restrictions are waived by the Corporation, such Purchaser shall not transfer the shares of Common Stock purchased hereunder without complying with the restrictions on transfer described in the legend endorsed on such certificate: THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. Such Purchaser may transfer the shares of Common Stock purchased hereunder to any affiliate or affiliates of such Purchaser where provided such transfer is not prohibited by any federal or state securities laws or any applicable banking law or regulation.
(h) The execution, delivery and performance by such Purchaser of this Agreement, purchase of its Funded Shares in the manner contemplated hereby, and the consummation of the transactions contemplated herein, will not (i) conflict with or constitute a material violation of, or material default (with the passage of time or the delivery of notice) under any law, administrative regulation, ordinance or judgment, order or decree of any court or other Governmental Authority binding upon such Purchaser or any of its property, or (ii) violate any of the provisions of the charter documents of such Purchaser; and no material consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is required for the consummation of the Transactions by such Purchaser, except such as may be required under Regulation D under the 1933 Act or for a Rule 506 “federal covered security” under state securities laws and for the Required Approvals.
(i) The offer to purchase the Common Stock to be purchased hereunder was directly communicated to such Purchaser by the Corporation. At no time was such Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio, television, internet or email advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.
(j) Such Purchaser neither is nor will be obligated for any finder’s or broker’s fee or commission in connection with Transactions for which the Corporation would be responsible.
(k) Such Purchaser has valid commitments and arrangements so that by the Closing it appears on will have sufficient funds to enable such Purchaser to pay the signature page(s) of sums required to be paid by it to the Corporation or, if applicable, the escrow agent, pursuant to this Agreement, and otherwise to perform its obligations under this Agreement.
(hl) Such Purchaser is not acquiring the Securities with assets of any "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974organized, as amended ("ERISA")) that is subject to Title I of ERISA formed, or Section 4975 of the Internal Revenue Code of 1986, as amended.
incorporated under (i) Assuming the capitalization laws of one of the Company set forth in its most recent report filed under the Exchange Act, such Purchaser, together with its "affiliates" (as defined in Rule 144 promulgated under the Securities Act), is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of not more than 4.9% states or territories of the outstanding shares United States of Common Stock immediately after America or the purchase District of Columbia or (ii) the federal laws of the Securities hereunder. The Company and, for purposes United States of America; and such Purchaser is domiciled in one of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to the Company, General Counsel to the Company and counsel to the Purchasers, will rely upon the accuracy and truth states or territories of the foregoing representations as to factual matters and agreements and each Purchaser hereby consents to such relianceUnited States of America or the District of Columbia.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchasers. Each Purchaser, Purchaser represents and warrants warrants, severally but not jointly, to, and agrees with, the Company, severally and not jointly and with respect to only itself (except with respect to the representation and warranty set forth in Section 6(f) which shall only be made by Xxxxxx Brothers Inc.)Corporation that, as followsof the date hereof, and as of the Closing Date:
(a) Such Purchaser is knowledgeable, sophisticated and experienced in business and financial matters and qualifies as an "accredited investor" as defined in Rule 501(a) of Regulation D and as a "qualified institutional buyer" as defined in Rule 144A under the Securities Act.
(b) Such Purchaser has been afforded access to information about the Company and the financial condition, results of operations, business, property, management and prospects of the Company sufficient to enable it to evaluate its investment in the Securities. Such Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Neither such access or questions nor any other due diligence investigations conduction by such Purchaser or its advisors, if any, or representatives shall modify, amend or affect such Purchaser's right to rely on the Company's representations, warranties and agreements contained in this Agreement, the Indenture, the Registration Rights Agreement and the Securities.
(c) Such Purchaser understands that its investment in the Securities involves a high degree of risk. Such Purchaser is able to bear the economic risk of its investment in the Securities and is presently able to afford the complete loss of such investment.
(d) Such Purchaser is acquiring the Securities solely for its own account and not as a nominee or agent for any other person and not with a view to any distribution thereof that violates the Securities Act or the securities laws of any State of the United States or any applicable jurisdiction; provided, however, that by making the representations herein, such Purchaser does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
(e) Xxxxxx Brothers Inc. has not offered or sold the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising in the United States.
(f) Such Purchaser has all necessary full power and authority to execute and deliver enter into this Agreement and perform its obligations hereunder; and this Agreement and and, assuming the transactions contemplated hereby have been duly authorized by such Purchaser; assuming due authorization, execution and delivery of this Agreement by the CompanyCorporation, this Agreement constitutes a legally valid and legally binding agreement obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' creditor’s rights generally, and general equitable principles (whether considered in a proceeding in equity or at law).
(b) Such Purchaser (i) is duly organized, validly existing and in good standing in its jurisdiction of incorporation or organization and has all the requisite power and authority to purchase such Purchaser’s Funded Shares, as provided herein, and (ii) its purchase of such Purchaser’s Funded Shares has been duly authorized by all necessary action on behalf of such Purchaser.
(c) Such Purchaser is purchasing its Funded Shares for such Purchaser’s own account and not with a view to or for sale in connection with any distribution thereof in a transaction that would violate or cause a violation of the 1933 Act or the securities laws of any state or any other applicable jurisdiction.
(d) Such Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the 1933 Act and understands and acknowledges that the offer and sale of the Funded Shares to such Purchaser hereunder have not been registered under the 1933 Act or any state securities law in reliance on the availability of an exemption from such registration requirements of the 1933 Act based in part on the accuracy of such Purchaser’s representations in this Section.
(e) In the normal course of such Purchaser’s business or affairs, such Purchaser invests in or purchases securities similar to the Common Stock and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing its Funded Shares. Such Purchaser has had access to such financial and other information concerning the Corporation and its Subsidiaries as such Purchaser deemed necessary or desirable in making a decision to purchase its Funded Shares, and has had an opportunity to ask questions and receive answers from officers of the Corporation and to obtain additional information (to the extent the Corporation possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to such Purchaser or to which such Purchaser had access.
(f) Such Purchaser is not relying on the Corporation or any of its affiliates with respect to an analysis or consideration of the terms of or economic considerations relating to an investment in the Common Stock. In regard to such considerations and analysis, such Purchaser has relied on the advice of, or has consulted with, its own advisors. Nothing herein shall limit the Corporation’s representations and warranties set forth in Section 3.1.
(g) Such Purchaser acknowledges and is aware that there are substantial restrictions on the transferability of the shares of Common Stock purchased hereunder. Such Purchaser understands that such shares have not been registered under the 1933 Act and are “restricted securities” within the meaning of Rule 144 of the 1933 Act, and may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom. Furthermore, such Purchaser acknowledges that the shares of Common Stock purchased hereunder will bear a resident of that jurisdiction specified in its address for notices legend to the effect set forth below below, and such Purchaser covenants that, except to the signature extent such restrictions are waived by the Corporation, such Purchaser shall not transfer the shares of Common Stock purchased hereunder without complying with the restrictions on transfer described in the legend endorsed on such certificate: THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. Such Purchaser may transfer the shares of Common Stock purchased hereunder to any affiliate or affiliates of such Purchaser where provided such transfer is not prohibited by any federal or state securities laws or any applicable banking law or regulation.
(h) The execution, delivery and performance by such Purchaser of this Agreement, purchase of its Funded Shares in the manner contemplated hereby, and the consummation of the transactions contemplated herein, will not (i) conflict with or constitute a material violation of, or material default (with the passage of time or the delivery of notice) under any law, administrative regulation, ordinance or judgment, order or decree of any court or other Governmental Authority binding upon such Purchaser or any of its property, or (ii) violate any of the provisions of the charter documents of such Purchaser; and no material consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is required for the consummation of the Transactions by such Purchaser, except such as may be required under Regulation D under the 1933 Act or for a Rule 506 “federal covered security” under state securities laws and for the Required Approvals.
(i) The offer to purchase the Common Stock to be purchased hereunder was directly communicated to such Purchaser by the Corporation. At no time was such Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio, television, internet or email advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.
(j) Such Purchaser neither is nor will be obligated for any finder’s or broker’s fee or commission in connection with Transactions for which the Corporation would be responsible.
(k) Such Purchaser has valid commitments and arrangements so that by the Closing it appears on will have sufficient funds to enable such Purchaser to pay the signature page(s) of sums required to be paid by it to the Corporation or, if applicable, the escrow agent, pursuant to this Agreement, and otherwise to perform its obligations under this Agreement.
(hl) Such Purchaser is not acquiring the Securities with assets of any "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974organized, as amended ("ERISA")) that is subject to Title I of ERISA formed, or Section 4975 of the Internal Revenue Code of 1986, as amended.
incorporated under (i) Assuming the capitalization laws of one of the Company set forth in its most recent report filed under the Exchange Act, such Purchaser, together with its "affiliates" (as defined in Rule 144 promulgated under the Securities Act), is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of not more than 4.9% states or territories of the outstanding shares United States of Common Stock immediately after America or the purchase District of Columbia or the federal laws of the Securities hereunder. The Company and, for purposes United States of America; and such Purchaser is domiciled in one of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to the Company, General Counsel to the Company and counsel to the Purchasers, will rely upon the accuracy and truth states or territories of the foregoing representations as to factual matters and agreements and each Purchaser hereby consents to such relianceUnited States of America or the District of Columbia.
Appears in 1 contract
Representations, Warranties and Agreements of the Purchasers. Each Purchaser, Purchaser hereby represents and warrants to, and agrees with, the Company, severally and not jointly and with respect to only itself (except with respect to the representation Company and warranty set forth in Section 6(f) which shall only be made by Xxxxxx Brothers Inc.)the Guarantors as follows (it being understood that each such Purchaser does not make any representation, as follows:warranty, covenant or agreement to any other purchaser of the Securities or to the Company or the Guarantors on behalf of any other purchaser of the Securities):
(a) Such Purchaser has full power and authority to purchase the Securities issued and offered hereby.
(b) Such Purchaser (i) is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with respect to investments in securities representing an investment decision like that involved in the purchase of the Securities, and has requested, received, reviewed and considered all information it deems relevant in making an informed decision to purchase the Securities; (ii) is acquiring the Securities in the ordinary course of its business and financial matters for its own account for investment purposes only and qualifies with no present intention of distributing any of such Securities or any arrangement or understanding with any other persons regarding the distribution of such Securities; and (iii) will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Securities except in compliance with the Securities Act and any applicable state securities laws.
(c) Such Purchaser is a “qualified institutional buyer” as defined in Rule 144A and/or an "institutional “accredited investor" ” as defined in Rule 501(a) of Regulation D and ), in each case as a "qualified institutional buyer" as defined in Rule 144A promulgated under the Securities Act.
(b) Such Purchaser has been afforded access to information about the Company and the financial condition, results of operations, business, property, management and prospects of the Company sufficient to enable it to evaluate its investment in the Securities. Such Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Neither such access or questions nor any other due diligence investigations conduction by such Purchaser or its advisors, if any, or representatives shall modify, amend or affect such Purchaser's right to rely on the Company's representations, warranties and agreements contained in this Agreement, the Indenture, the Registration Rights Agreement and the Securities.
(cd) Such Purchaser understands and acknowledges that its investment in (i) the Securities involves a high degree of risk. Such Purchaser is able to bear the economic risk of its investment are being offered in transactions that rely on an exemption from registration provided by Section 4(a)(2) under the Securities Act and is presently able to afford an exemption from applicable state securities law requirements; (ii) the complete loss initial offering and issuance of such investment.
(d) Such Purchaser is acquiring the Securities solely for its own account and has not as a nominee or agent for any other person and not with a view to any distribution thereof that violates been registered under the Securities Act or any other securities laws; (iii) if in the future it decides to resell, pledge or otherwise transfer the Securities that it purchases hereunder, those Securities, absent an effective registration statement under the Securities Act, may be resold, pledged or transferred only pursuant to an applicable exemption from registration under the Securities Act in accordance with any applicable securities laws of any State the states and other jurisdictions of the United States or any applicable jurisdiction; providedStates, howeverand (iv) it will, that by making the representations herein, such Purchaser does not agree to hold and each subsequent holder of any of the Securities for that it purchases in this offering is required to, notify any minimum subsequent purchaser of such Securities from it or other specific term and reserves the right to dispose subsequent holders, as applicable, of the Securities at any time resale restrictions referred to in accordance with or pursuant to a registration statement or an exemption under the Securities Actclause (iii) above.
(e) Xxxxxx Brothers Inc. has not offered or sold the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including Such Purchaser understands and acknowledges that (i) any advertisementthe Company and the Guarantors are relying upon the truth and accuracy of the acknowledgements, articlerepresentations, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio, or and agreements of such Purchaser set forth herein; (ii) none of the Company, the Guarantors, or any seminar person acting on behalf of the foregoing has made any statement, representation, or meeting whose attendees have been invited by warranty, express or implied, to it with respect to the Company, the Guarantors, or the offer or sale of any general solicitation or general advertising Securities, other than the information included in the United StatesDisclosure Package.
(f) Such Purchaser has all necessary power and authority to execute and deliver this Agreement and perform its obligations hereunder; and this Agreement and understands that the transactions contemplated hereby have been duly authorized by such Purchaser; assuming due authorization, execution and delivery by Series B Notes will bear a restrictive legend substantially in the Company, this Agreement constitutes a legally valid and binding agreement of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject following form or otherwise as required pursuant to the effects of bankruptcyAmended Indenture: “THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, insolvencyAS AMENDED (THE “SECURITIES ACT”), fraudulent conveyanceAND MAY NOT BE OFFERED, reorganizationSOLD, moratorium and other similar laws relating to or affecting creditors' rights generally.PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER
(g1) Such Purchaser is a resident of that jurisdiction specified in its address for notices set forth below the signature of such Purchaser where it appears on the signature page(sREPRESENTS THAT (A) of this Agreement.
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (hWITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) Such Purchaser is not acquiring the Securities with assets of any "employee benefit plan" AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, (within the meaning of Section 3(3B) of the Employee Retirement Income Security Act of 1974, as amended IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” ("ERISA")WITHIN THE MEANING OF RULE 501(a) that is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended.
(i) Assuming the capitalization of the Company set forth in its most recent report filed under the Exchange Act, such Purchaser, together with its "affiliates" (as defined in Rule 144 promulgated under the Securities Act1), is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act2), (3) of not more than 4.9% of the outstanding shares of Common Stock immediately after the purchase of the Securities hereunder. The Company andOR (7) UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”), for purposes of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to the Company, General Counsel to the Company and counsel to the Purchasers, will rely upon the accuracy and truth of the foregoing representations as to factual matters and agreements and each Purchaser hereby consents to such reliance.OR
Appears in 1 contract
Representations, Warranties and Agreements of the Purchasers. Each Purchaser, Purchaser represents and warrants warrants, severally but not jointly, to, and agrees with, the Company, severally and not jointly and with respect to only itself (except with respect to the representation and warranty set forth in Section 6(f) which shall only be made by Xxxxxx Brothers Inc.)Corporation that, as followsof the date hereof, and as of the Initial Closing Date and each Drawdown Closing Date:
(a) Such Purchaser is knowledgeable, sophisticated and experienced in business and financial matters and qualifies as an "accredited investor" as defined in Rule 501(a) of Regulation D and as a "qualified institutional buyer" as defined in Rule 144A under the Securities Act.
(b) Such Purchaser has been afforded access to information about the Company and the financial condition, results of operations, business, property, management and prospects of the Company sufficient to enable it to evaluate its investment in the Securities. Such Purchaser and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. Neither such access or questions nor any other due diligence investigations conduction by such Purchaser or its advisors, if any, or representatives shall modify, amend or affect such Purchaser's right to rely on the Company's representations, warranties and agreements contained in this Agreement, the Indenture, the Registration Rights Agreement and the Securities.
(c) Such Purchaser understands that its investment in the Securities involves a high degree of risk. Such Purchaser is able to bear the economic risk of its investment in the Securities and is presently able to afford the complete loss of such investment.
(d) Such Purchaser is acquiring the Securities solely for its own account and not as a nominee or agent for any other person and not with a view to any distribution thereof that violates the Securities Act or the securities laws of any State of the United States or any applicable jurisdiction; provided, however, that by making the representations herein, such Purchaser does not agree to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.
(e) Xxxxxx Brothers Inc. has not offered or sold the Securities by means of any form of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising in the United States.
(f) Such Purchaser has all necessary full power and authority to execute and deliver enter into this Agreement and perform its obligations hereunder; and this Agreement and and, assuming the transactions contemplated hereby have been duly authorized by such Purchaser; assuming due authorization, execution and delivery of this Agreement by the CompanyCorporation, this Agreement constitutes a legally valid and legally binding agreement obligation of such Purchaser, enforceable against such Purchaser in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' creditor’s rights generally, and general equitable principles (whether considered in a proceeding in equity or at law).
(b) Such Purchaser (i) is duly organized, validly existing and in good standing in its jurisdiction of incorporation or organization and has all the requisite power and authority to purchase such Purchaser’s Initial Funded Shares and any Drawdown Shares of such Purchaser, as provided herein, and (ii) its purchase of such Purchaser’s Initial Funded Shares and any Drawdown Shares of such Purchaser has been duly authorized by all necessary action on behalf of such Purchaser.
(c) Such Purchaser is purchasing its Initial Funded Shares and any Drawdown Shares for such Purchaser’s own account and not with a view to or for sale in connection with any distribution thereof in a transaction that would violate or cause a violation of the 1933 Act or the securities laws of any state or any other applicable jurisdiction.
(d) Such Purchaser is an “accredited investor” as defined in Rule 501(a) promulgated under the 1933 Act and understands and acknowledges that the offer and sale of the Initial Funded Shares and any Drawdown Shares to such Purchaser hereunder have not been registered under the 1933 Act or any state securities law in reliance on the availability of an exemption from such registration requirements of the 1933 Act based in part on the accuracy of such Purchaser’s representations in this Section.
(e) In the normal course of such Purchaser’s business or affairs, such Purchaser invests in or purchases securities similar to the Common Stock and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of purchasing its Initial Funded Shares and any Drawdown Shares. Such Purchaser has had access to such financial and other information concerning the Corporation and its Subsidiaries as such Purchaser deemed necessary or desirable in making a decision to purchase its Initial Funded Shares and any Drawdown Shares, and has had an opportunity to ask questions and receive answers from officers of the Corporation and to obtain additional information (to the extent the Corporation possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to such Purchaser or to which such Purchaser had access.
(f) Such Purchaser is not relying on the Corporation or any of its affiliates with respect to an analysis or consideration of the terms of or economic considerations relating to an investment in the Common Stock. In regard to such considerations and analysis, such Purchaser has relied on the advice of, or has consulted with, its own advisors. Nothing herein shall limit the Corporation’s representations and warranties set forth in Section 3.1.
(g) Such Purchaser acknowledges and is aware that there are substantial restrictions on the transferability of the shares of Common Stock purchased hereunder. Such Purchaser understands that such shares have not been registered under the 1933 Act and are “restricted securities” within the meaning of Rule 144 of the 1933 Act, and may not be sold, transferred, or otherwise disposed of without registration under the 1933 Act or an exemption therefrom. Furthermore, such Purchaser acknowledges that the shares of Common Stock purchased here under will bear a resident of that jurisdiction specified in its address for notices legend to the effect set forth below below, and such Purchaser covenants that, except to the signature extent such restrictions are waived by the Corporation, such Purchaser shall not transfer the shares of Common Stock purchased hereunder without complying with the restrictions on transfer described in the legend endorsed on such certificate: THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES LAW OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. Such Purchaser may transfer the shares of Common Stock purchased hereunder to any affiliate or affiliates of such Purchaser where provided such transfer is not prohibited by any federal or state securities laws or any applicable banking law or regulation.
(h) The execution, delivery and performance by such Purchaser of this Agreement, purchase of its Initial Funded Shares and any Drawdown Shares in the manner contemplated hereby, and the consummation of the transactions contemplated herein, will not (i) conflict with or constitute a material violation of, or material default (with the passage of time or the delivery of notice) under any law, administrative regulation, ordinance or judgment, order or decree of any court or other Governmental Authority binding upon such Purchaser or any of its property, or (ii) violate any of the provisions of the charter documents of such Purchaser; and no material consent, approval, authorization or order of, or filing or registration with any such person (including, without limitation, any such court or governmental agency or body) is required for the consummation of the Transactions by such Purchaser, except such as may be required under Regulation D under the 1933 Act or for a Rule 506 “federal covered security” under state securities laws and for the Required Approvals.
(i) The offer to purchase the Common Stock to be purchased hereunder was directly communicated to such Purchaser by the Corporation. At no time was such Purchaser presented with or solicited by any leaflet, newspaper or magazine article, radio, television, internet or email advertisement, or any other form of general advertising or solicited or invited to attend a promotional meeting otherwise than in connection and concurrently with such communicated offer.
(j) Such Purchaser neither is nor will be obligated for any finder’s or broker’s fee or commission in connection with Transactions for which the Corporation would be responsible.
(k) Such Purchaser has valid commitments and arrangements so that by the Initial Closing and any Drawdown Closing or Escrow Funding it appears on will have sufficient funds to enable such Purchaser to pay the signature page(s) of sums required to be paid by it to the Corporation or, if applicable, the escrow agent, pursuant to this Agreement, and otherwise to perform its obligations under this Agreement.
(hl) Such Purchaser is not acquiring the Securities with assets of any "employee benefit plan" (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974organized, as amended ("ERISA")) that is subject to Title I of ERISA formed, or Section 4975 of the Internal Revenue Code of 1986, as amended.
incorporated under (i) Assuming the capitalization laws of one of the Company set forth in its most recent report filed under the Exchange Act, such Purchaser, together with its "affiliates" (as defined in Rule 144 promulgated under the Securities Act), is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of not more than 4.9% states or territories of the outstanding shares United States of Common Stock immediately after America or the purchase District of Columbia or (ii) the federal laws of the Securities hereunder. The Company and, for purposes United States of America; and such Purchaser is domiciled in one of the opinions to be delivered to you pursuant to Section 5 hereof, counsel to the Company, General Counsel to the Company and counsel to the Purchasers, will rely upon the accuracy and truth states or territories of the foregoing representations as to factual matters and agreements and each Purchaser hereby consents to such relianceUnited States of America or the District of Columbia.
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