Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof; (b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests; (c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder; (d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise; (e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder; (f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and (g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interests.
Appears in 5 contracts
Samples: Master Transaction Agreement (Bracebridge Capital, LLC), Master Transaction Agreement (Quotient LTD), Master Transaction Agreement (Honeywell Capital Management LLC)
Securities Laws Matters. (a) Such Consenting Noteholder is either a QTG acknowledges that (i) QTS REIT intends the offer and issuance of the Purchased Class B Shares hereunder to be exempt from registration under the Securities Act and applicable state securities laws by virtue of the status of QTG as an “qualified institutional buyeraccredited investor” (within the meaning of Rule 144A 501(a) of Regulation D under the Securities Act, a Act (“QIBRegulation D”) or an “accredited investor” (as defined acquiring such Purchased Class B Shares in transactions exempt from registration pursuant to Rule 501(a) under the Securities Act, an “AI”)506 of Regulation D, and (ii) in issuing any Purchased Class B Shares pursuant to the terms of this Agreement, QTS REIT is acquiring relying on the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;representations made by QTG as follows:
(b) Such Consenting Noteholder’s QTG has had access to and has received such financial situation and other information regarding QTS REIT as QTG deems necessary in order to make its investment decision to acquire the Purchased Class B Shares to be issued to QTG hereunder. QTG has not relied on representations, warranties, opinions, projections, financial or other information or analysis, if any, supplied to it by any person other than QTS REIT, its Affiliates or its representatives.
(c) QTG is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the acquisition of the Purchased Class B Shares hereunder, and QTG is able to bear the economic risks of such an investment. QTG is aware that it can afford may be required to bear the economic risk of holding an investment in the New Equity Interests Purchased Class B Shares for an indefinite period of time, and it is able to bear such Consenting Noteholder can afford risk for an indefinite period. QTG has relied upon its own tax, legal and financial advisors in connection with its decision to suffer acquire the complete loss Purchased Class B Shares issued to QTG hereunder. QTG is an “accredited investor” within the meaning of such Consenting Noteholder’s investment in such New Equity Interests;
(cRule 501(a) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;Regulation D.
(d) Such Consenting Noteholder understands that QTG is acquiring the New Equity Interests acquired by such Consenting Noteholder Purchased Class B Shares to be issued hereunder are for its own account and not with a speculative investment which involves a high degree view to or for the purposes of risk of loss of the entire investment thereinresale, that there will be substantial restrictions on the transferability distribution or fractionalization, in whole or in part, of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;Purchased Class B Shares.
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder QTG acknowledges that the Company Entities have Purchased Class B Shares to be issued hereunder has not been registered under the Securities Act and is being offered and sold to QTG in reliance on specific exemptions from the registration requirements of U.S. securities laws and that QTS REIT is relying upon the truth and accuracy of the representations and warranties of QTG set forth in this Section 3.8 in order to determine the applicability of such exemptions and the suitability of QTG to acquire the Purchased Class B Shares. QTG agrees that if any such representation and warranty made available in this Section 3.8 is no longer accurate, it shall promptly notify QTS REIT. QTG acknowledges that if it decides to resell or otherwise transfer any of its Purchased Class B Shares, then such Consenting Noteholder all agreements, documents, records and books shares may be resold or transferred only if sold in a transaction that such Consenting Noteholder has requested relating to an investment in does not require registration under the New Equity Interests acquired by such Consenting Noteholder hereunder;Securities Act or any applicable laws of the states of the United States.
(f) Such Consenting Noteholder has not employed QTG agrees that so long as the Purchased Class B Shares to be issued to QTG hereunder are “restricted securities” as defined in Rule 144 under the Securities Act, it shall notify each transferee of any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
shares of Purchased Class B Shares from it that (gi) Such Consenting Noteholder understands that New Equity Interests such shares have not been registered under the Securities Act, (ii) such shares are subject to the restrictions on the resale or other transfer thereof described in paragraph (e) above, (iii) such transferee shall be deemed to have represented (x) as to its status as a purchaser acquiring such shares in a transaction that does not require registration under the Securities Act in reliance on or any applicable laws of the states of the United States and (y) that such transferee is not an exemption therefrom under “underwriter” within the meaning of Section 4(a)(22(11) of the Securities Act and that any certificates or statements related (iv) such transferee shall be deemed to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting have agreed to notify its subsequent transferees as to the transfer of such New Equity Interestsforegoing.
Appears in 2 contracts
Samples: Class B Stock Purchase Agreement, Class B Stock Purchase Agreement (QTS Realty Trust, Inc.)
Securities Laws Matters. The provisions of this Section 4 relate to any Purchased Stock that Executive purchases under this Agreement:
(a) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), Executive represents and warrants that Executive is acquiring the equity interests Purchased Stock for Executive's own account, to hold for investment, with no present intention of dividing Executive's participation with others or reselling or otherwise participating, directly or indirectly, in Newco a distribution of the Purchased Stock and GP (collectively, that Executive shall not make any sale of the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account Purchased Stock in violation of a QIB or an AI) and not with a view toany state securities laws, or for sale in connection withviolation of the Securities Act of 1933, any distribution thereof;as amended (the "Securities Act"), or the rules and regulations promulgated thereunder by the United States Securities and Exchange Commission.
(b) Such Consenting Noteholder’s financial situation Executive has been advised that the Purchased Stock is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of timenot being registered under any state securities laws, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been being registered under the Securities Act in reliance on an exemption therefrom upon certain exemptive provisions of said Acts.
(c) Executive agrees that the Enstar may refuse to permit Executive to sell, transfer or dispose of the Purchased Stock unless there is in effect a registration statement under Section 4(a)(2) of the Securities Act and any applicable state securities laws or Executive furnishes an opinion of counsel, satisfactory to counsel for the Enstar, to the effect that such registration is not required.
(d) Executive understands and agrees that there may be placed on the stock certificates representing such Purchased Stock a legend stating in substance: THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ISSUED AND SOLD WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE, IN RELIANCE UPON CERTAIN EXEMPTIVE PROVISIONS OF SAID ACTS. SAID SHARES CANNOT BE SOLD OR TRANSFERRED EXCEPT IF SUCH SALE OR TRANSFER WOULD BE: (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION; AND (2) IN A TRANSACTION WHICH IS EXEMPT UNDER APPLICABLE STATE SECURITIES LAWS, OR PURSUANT TO EFFECTIVE REGISTRATION STATEMENTS UNDER SUCH LAWS, OR IN A TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE WITH SUCH LAWS. Executive understands and agrees that other legends required under applicable securities laws also may be placed on such certificates.
(e) Executive is an "accredited investor" as defined by Rule 501(a) of Regulation D promulgated under the Securities Act in that Executive is both an executive officer of Enstar and has a net worth in excess of $1,000,000.
(f) Executive has received no general or public solicitation or any certificates or statements related advertisement concerning an offer to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting sell the transfer of such New Equity InterestsPurchased Stock.
Appears in 2 contracts
Samples: Stock Purchase and Stock Options Agreement (Enstar Group Inc), Stock Purchase and Stock Options Agreement (Enstar Group Inc)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” JBG Party acknowledges (within on behalf of itself and the meaning of Rule 144A under the Securities Act, a “QIB”JBG Designees) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests Issued OP Units and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests Issued Newco Shares have not been registered under the Securities Act in reliance or under any state securities Laws. Such JBG Party acknowledges (on behalf of itself and its JBG Designees) that the Issued OP Units and Issued Newco Shares to be acquired by such JBG Party or any of its Subsidiaries or any JBG Designee pursuant hereto are “restricted securities” as that term is defined by Rule 144(a)(3) under the Securities Act and under applicable state securities Laws and that, pursuant to such Laws, such JBG Party and its JBG Designees must hold such Issued OP Units and Issued Newco Shares until they are registered with the SEC and qualified by state authorities, or an exemption therefrom from such registration and qualification requirements is available and, other than as set forth in the Registration Rights Agreements, the Vornado Parties, Newco and Newco OP have no obligation to register or qualify such units or shares for resale.
(b) Such JBG Party (i) acknowledges that it or any of its Subsidiaries or any JBG Designee is acquiring the Issued OP Units and Issued Newco Shares pursuant to an exemption from registration under Section 4(a)(2the Securities Act solely for investment with no present intention to distribute any of the Issued OP Units and Issued Newco Shares to any Person in violation of applicable securities Laws, (ii) will not sell or otherwise dispose of any of the Issued OP Units and Issued Newco Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities Laws, (iii) is an Accredited Investor, and (iv) (x) has had access to and has received such financial and other information regarding the Parties, Newco, Newco OP, the Issued Newco Shares and/or the Issued OP Units, as applicable, that it deems necessary to make an informed investment decision regarding such Issued OP Units and Issued Newco Shares and (y) can bear the economic risk of an investment in the Issued OP Units and/or Issued Newco Shares indefinitely. Such JBG Party will have obtained investor questionnaires (each, a “JBG Investor Questionnaire”) from each of its JBG Designees to which the Issued OP Units and Issued Newco Shares will be issued, which questionnaires shall contain, for the benefit of Newco and Newco OP (as applicable), acknowledgements with respect to the matters covered in Section 4.5(a) and written representations from each such JBG Designee to the effect that that such JBG Designee is an Accredited Investor (or, in the event any certificates or statements related non-Accredited Investor is permitted to bookreceive Equity Consideration consistent with Regulation D pursuant to Section 1.7(b), that such non-entry accounts representing or Accredited Investor is a Sophisticated Investor) and that the preceding representations and warranties in this Section 4.5(b) are otherwise evidencing any New Equity Interests true, complete and correct with respect to such JBG Designee. To the knowledge of such JBG Party, each such Investor Questionnaire is true, complete and correct.
(c) Each JBG Party acknowledges that the Issued Newco Shares to be acquired by such JBG Party and its JBG Designees pursuant hereto, if certificated, shall bear the following legends restricting (in addition to any legend required under applicable state securities Laws): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE ENCUMBERED, PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES EXCEPT PURSUANT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS.”
(d) Each JBG Party acknowledges that the Issued OP Units to be acquired by such JBG Party and its JBG Designees pursuant hereto, if certificated, shall bear the following legends (in addition to any legend required under applicable state securities Laws): “THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE PARTNERSHIP AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE SATISFACTORY TO THE PARTNERSHIP, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS. IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.”
(e) In addition, such JBG Party acknowledges that the Issued Newco Shares are subject to restrictions on ownership and transfer of set forth in the Newco Declaration, and the Newco Shares to be acquired by such New Equity InterestsJBG Party and its JBG Designees pursuant hereto, if certificated, shall bear the following legends, or such other legend as may be required from time to time by the Newco Declaration: “THE EQUITY SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OWNERSHIP FOR THE PURPOSE, AMONG OTHERS, OF THE TRUST’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST (A “REIT”) UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST’S DECLARATION OF TRUST, (I) NO PERSON MAY BENEFICIALLY OWN EQUITY SHARES IN EXCESS OF THE OWNERSHIP LIMIT; (II) NO PERSON MAY CONSTRUCTIVELY OWN EQUITY SHARES IN EXCESS OF THE CONSTRUCTIVE OWNERSHIP LIMIT; (III) NO PERSON MAY TRANSFER EQUITY SHARES IF SUCH TRANSFER WOULD RESULT IN THE EQUITY SHARES OF THE TRUST BEING OWNED BY FEWER THAN 100 PERSONS; AND (IV) NO PERSON MAY TRANSFER EQUITY SHARES IF SUCH TRANSFER WOULD RESULT IN THE TRUST BEING “CLOSELY HELD” UNDER SECTION 856(H) OF THE CODE OR OTHERWISE CAUSE THE TRUST TO FAIL TO QUALIFY AS A REIT. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN EQUITY SHARES WHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN EQUITY SHARES IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE TRUST. ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE WILL BE VOID AB INITIO, AND IF THE BENEFICIAL OWNERSHIP, CONSTRUCTIVE OWNERSHIP OR TRANSFER OF THE EQUITY SHARES REPRESENTED HEREBY VIOLATES THE RESTRICTIONS ON TRANSFER OR OWNERSHIP SET FORTH IN CLAUSES (I), (II) OR (IV), THE EQUITY SHARES REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO A SPECIAL TRUST FOR THE BENEFIT OF ONE OR MORE BENEFICIARIES. IN ADDITION, THE TRUST MAY REDEEM EQUITY SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF TRUSTEES IN ITS SOLE AND ABSOLUTE DISCRETION IF THE BOARD OF TRUSTEES DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS SET FORTH IN THE DECLARATION OF TRUST, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF EQUITY SHARES OF THE TRUST ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE TRUST AT ITS PRINCIPAL OFFICE.”
Appears in 2 contracts
Samples: Master Transaction Agreement (JBG SMITH Properties), Master Transaction Agreement (Vornado Realty Lp)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and IGLOO is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder Share Consideration for investment for such Consenting NoteholderIGLOO’s own account (or and the Share Consideration is being, and will be, acquired by IGLOO for the account purpose of a QIB or an AI) investment and not with a view toto distribution or resale thereof. IGLOO has no present intention of selling, granting any participation in, or for sale in connection withotherwise distributing any portion of the Share Consideration and does not presently have any Contract, undertaking or arrangement with any distribution thereof;
(b) Such Consenting Noteholder’s financial situation person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Share Consideration. IGLOO acknowledges it is such that it can afford able to bear the economic risk of holding the New Equity Interests for an indefinite period of timeShare Consideration, and has such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and or business matters are such that such Consenting Noteholder IGLOO is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder Share Consideration. Without derogating from any of the rights of IGLOO pursuant to the Registration Rights and Lock Up Agreement, IGLOO understands that (i) the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may Share Consideration has not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions ofbeen, and to receive answers fromwill not be, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on Act, (ii) the securities comprising the Share Consideration are “restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, IGLOO must hold the Share Consideration indefinitely unless such shares are registered with the Securities and Exchange Commission and qualified by any applicable state authorities, or an exemption therefrom from such registration and qualification requirements is available, (iii) Purchaser Group has no obligation to register or qualify the Share Consideration and, if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Share Consideration, and on requirements relating to Purchaser Group which are outside of IGLOO’s control, and which Purchaser Group is under no obligation and may not be able to satisfy, (iv) this offering is not intended to be part of a public offering, and that IGLOO will not be able to rely on the protection of Section 4(a)(2) 11 of the Securities Act and that (v) the Share Consideration and any certificates securities issued in respect of or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests exchange for the Share Consideration shall bear the following legend, as well as any other legends restricting the transfer of such New Equity Interestsrequired by state or foreign securities laws: “THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED, OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH.”
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (Mandalay Digital Group, Inc.)
Securities Laws Matters. (1) In addition to the other representations, warranties and covenants set forth herein, as a material inducement to the Purchaser to enter into this Agreement and to consummate the transactions contemplated hereby, the Vendor makes the following representations, warranties and covenants, as applicable:
(a) Such Consenting Noteholder The Vendor is either acquiring the Issued Shares offered and sold to it hereunder and, to the extent applicable, the Additional Shares as principal for its own account for investment purposes only and not with a “qualified institutional buyer” (within view to or for distributing or reselling such Issued Shares, the meaning Additional Shares or any part thereof or interest therein, without prejudice, however, to the Vendor's right, subject to the provisions of Rule 144A this Agreement, at all times to sell or otherwise dispose of all or any part of such Issued Shares or the Additional Shares pursuant to an effective registration statement under the Securities ActAct of 1933, a “QIB”as amended (the "SECURITIES ACT") and in compliance with applicable state securities laws or under an “exemption from such registration. The Vendor is aware of the resale restrictions imposed by Rule 144 of the Securities Act and understands that its ability to resell the Issued Shares and the Additional Shares pursuant to Rule 144 may be subject to certain limitations, including minimum holding period, volume limitations, manner of sale limitations and the availability of current information by the Purchaser. By making this representation, the Vendor does not represent that it will hold such Issued Shares and the Additional Shares for any period of time;
(b) At the time the Vendor was offered the Issued Shares, and, to the extent applicable, the Additional Shares, it was, and at the date hereof it is, and on the first anniversary date of the Closing will be, an "accredited investor” (" as defined in Rule 501(a) under the Securities Act, an “AI”), and is . The Vendor has not been formed solely for the purpose of acquiring the equity interests in Newco and GP (collectively, Issued Shares or the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity InterestsAdditional Shares;
(c) Such Consenting Noteholder’s knowledge The Vendor, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial and business matters are such that such Consenting Noteholder is so as to be capable of evaluating the merits and risks of such Consenting Noteholder’s the prospective investment in the New Equity Interests acquired by Issued Shares and the Additional Shares, and has so evaluated the merits and risks of such Consenting Noteholder hereunderinvestment;
(d) Such Consenting Noteholder understands that The Vendor is able to bear the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of economic risk of an investment in the Issued Shares and the Additional Shares and, at the present time, is able to afford a complete loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwiseinvestment;
(e) Such Consenting Noteholder The Vendor has been given access to all of the Purchaser's public documents, records, and other information, , including but not limited to filings made by the Purchaser with the U.S. Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "SECURITIES EXCHANGE ACT"), and has had adequate opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities Purchaser's officers, employees, agents, accountants, and their respective Representatives representatives concerning the Company EntitiesPurchaser's business, operations, financial condition, assets, liabilities, and other matters considered by the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and Vendor as relevant to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an its investment in the New Equity Interests acquired by such Consenting Noteholder hereunderIssued Shares and the Additional Shares;
(f) Such Consenting Noteholder has The Vendor is not employed purchasing the Issued Shares or the Additional Shares as a result of or subsequent to any investment bankeradvertisement, broker article, notice or finder other communication regarding the Issued Shares or incurred the Additional Shares published in any actual newspaper, magazine or potential liability similar media or obligation, whether direct broadcast over television or indirect, for radio or presented at any brokers’ fees seminar or finders’ fees in connection with the transactions contemplated by this Agreement; andany other general solicitation or general advertisement;
(g) Such Consenting Noteholder The certificates representing the Issued Shares and, to the extent applicable, the Additional Shares, shall bear the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO, OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
(h) The Vendor understands and acknowledges that New Equity Interests have not been registered (i) the Issued Shares are being offered and, to the extent applicable, the Additional Shares will be offered, and sold to it without registration under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) a private placement that is exempt from the registration provisions of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting (ii) the transfer availability of such New Equity Interestsexemption, depends in part on, and the Purchaser will rely upon the accuracy and truthfulness of, the foregoing representations and such Vendor hereby consents to such reliance.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” (within The Seller acknowledges that the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” HLM Stock (as defined in Rule 501(aSection 7.2(c) hereof) to be delivered with respect to the Stock Payment will not be registered under the Securities ActAct of 1933, an “AI”as amended (the "SECURITIES ACT"), or under any state securities laws and may not be transferred except in a transaction which either is acquiring registered under the equity interests in Newco Securities Act and GP (collectivelyany such state securities laws or is exempt from such registrations. Further, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for HLM Stock shall be subject to other agreements, including but not limited to the account of a QIB or an AI) Stockholders' Agreement referred to in Article VII hereof restricting their transferability and not with a view to, or for sale in connection with, any distribution thereof;setting forth certain other restrictions.
(b) Such Consenting Noteholder’s financial situation The Seller represents and warrants that his residence and principal place of business is such located in the State of Texas and that it can afford the Purchaser has not communicated with the Seller with respect to bear the economic risk offer or sale of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer HLM Stock at any time the complete loss of such Consenting Noteholder’s investment Seller was located in such New Equity Interests;any other State.
(c) Such Consenting Noteholder’s The Seller represents and warrants that:
(1) The Seller is well versed in financial matters and has substantial knowledge and experience in financial and business matters are such and that such Consenting Noteholder he is fully capable of evaluating understanding the merits and risks of such Consenting Noteholder’s the investment being made in the HLM Stock and the risks involved in connection therewith;
(2) The Seller is acting herein for the Seller's own account and is acquiring the HLM Stock for investment without a view to the resale or other distribution thereof. The Seller is financially able to hold the HLM Stock for long-term investment, believes that the nature and amount of the HLM Stock to be acquired hereunder is consistent with the Seller's overall investment program and financial position, and recognizes that there are substantial risks involved in an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;HLM Stock; and
(3) The Seller has received and reviewed the Purchaser's annual report on Form 10-K for the fiscal year ended April 30, 1999, and its quarterly report on Form 10-Q for the fiscal quarter ended January 28, 2000.
(d) Such Consenting Noteholder understands Seller acknowledges and agrees that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss Purchaser may, if it so desires, permit transfers, or authorize its transfer agent to permit transfers, of the entire investment therein, that there will be substantial restrictions on the transferability of HLM Stock only when such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder HLM Stock has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on and/or applicable state securities laws and/or when the request for transfer is accompanied by satisfactory assurances (including, if requested, an exemption therefrom opinion of counsel acceptable to the Purchaser) that the sale or proposed transfer does not require registration under Section 4(a)(2) of the Securities Act and applicable state securities laws, and the Seller agrees that any certificates or statements related a legend to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting such effect will be placed on the transfer of such New Equity InterestsHLM Stock.
Appears in 1 contract
Securities Laws Matters.
(a) Such Consenting Noteholder is either a “qualified institutional buyer” (within Seller has been advised that shares constituting the meaning of Rule 144A Share Consideration have not been and will not be registered under the Securities ActAct or any U.S. state securities laws, a “QIB”) that such securities may not be sold or otherwise disposed of unless they are registered thereunder or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), exemption from registration is available and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for that accordingly such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford Seller may be required to bear the economic risk of holding the New Equity Interests investment in such securities for an indefinite period of time.
(b) If such Seller is entitled to receive Buyer Parent Shares hereunder, such Seller is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act, and such Consenting Noteholder can afford has duly completed and executed a U.S. Accredited Investor Certificate in the form set out as Exhibit “B” for delivery to suffer Buyer on or before the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;Execution Date.
(c) Such Consenting NoteholderSeller is acquiring the Share Consideration for investment for such Seller’s own account and presently does not have a view to sell or resell any of the Share Consideration except in compliance with and as permitted by Law, including the Securities Act, Canadian Securities Laws and applicable U.S. state securities laws.
(d) Such Seller has been given the opportunity to obtain information and documents, (including, without limitation, information and documents filed by Buyer Parent with Canadian Securities Administrators and available on the internet at xxx.xxxxx.xxx) and to ask questions and receive answers about such information and documents, Buyer Parent and the business and prospects of Buyer Parent, and such Seller acknowledges and agrees that no representations concerning such matters or any other matters related to such investment have been made to such Seller except as expressly set forth in this Agreement. Such Seller has consulted its own attorney, accountant or investment advisor with respect to the investment contemplated hereby and its suitability therefor, including the Tax and other economic considerations related to such Seller’s investment in the Buyer Parent Shares.
(e) Such Seller (i) has knowledge and experience in financial and business matters are such that such Consenting Noteholder Seller is capable of evaluating the merits and risks of the purchase of Buyer Parent Shares as contemplated by this Agreement, (ii) understands and has taken cognizance of all risk factors related to the purchase of such Consenting Noteholder’s shares and (iii) is able to bear the economic risk of the investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are shares for an indefinite period of time and can afford to suffer a speculative investment which involves a high degree of risk of complete loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;shares.
(f) Such Consenting Noteholder Seller has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with been informed that the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under offer of the Securities Act in reliance on Share Consideration is being made pursuant to an exemption therefrom under Section 4(a)(2) from the registration requirements of the Securities Act and applicable U.S. state securities laws relating to transactions by an issuer not involving a public offering, and that, consequently, the materials relating to the offer have not been subject to review and comment by the staff of the Securities and Exchange Commission or any other Governmental Authority.
(g) The purchase of the Share Consideration by Sellers is to be made under a prospectus exemption available under Canadian Securities Laws.
(h) Such Seller is not subscribing for the Share Consideration as a result of, or subsequent to, any advertisement, article, notice or other communication published in any newspapers, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a Person not previously known to such Seller, in connection with investments in securities generally.
(i) Such Seller understands and acknowledges that any upon the original issuance of the Share Consideration, and until such time as the same is no longer required under applicable requirements of applicable securities Laws, including Canadian Securities Laws and United States federal and state securities Laws, certificates representing the Buyer Parent Shares comprising the Share Consideration, and all certificates issued in exchange therefor or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests in substitution thereof, shall bear legends a legend restricting the transfer of such New Equity Interestsshares in accordance with applicable securities Laws, including Canadian Securities Laws and United States federal and state securities Laws.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder Seller is either an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”).
(b) Such Seller is acquiring the Share Consideration for investment for such Seller’s own account and presently does not have a “qualified institutional buyer” view to sell or resell any of the Share Consideration except in compliance with and as permitted by Law, including the Securities Act and Canadian Securities Laws.
(within c) Such Seller has been advised that shares constituting the meaning of Rule 144A Share Consideration have not been registered under the Securities Act, a “QIB”) that such shares may not be sold or otherwise disposed of unless they are registered thereunder or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), exemption from registration is available and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for that accordingly such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford Seller may be required to bear the economic risk of holding the New Equity Interests investment in such shares for an indefinite period of time.
(d) Such Seller has been given the opportunity to obtain information and documents, and to ask questions and receive answers about such information and documents, Buyer Parent and the business and prospects of Buyer Parent, and such Consenting Noteholder can afford Seller acknowledges and agrees that no representations concerning such matters or any other matters related to suffer such investment have been made to such Seller except as expressly set forth in this Agreement. Such Seller has consulted its own attorney, accountant or investment advisor with respect to the complete loss of investment contemplated hereby and its suitability therefor, including the Tax and other economic considerations related to such Consenting NoteholderSeller’s investment in such New Equity Interests;the Buyer Parent Shares.
(ce) Such Consenting Noteholder’s Seller (i) has knowledge and experience in financial and business matters are such that such Consenting Noteholder Seller is capable of evaluating the merits and risks of the purchase of Buyer Parent Shares as contemplated by this Agreement, (ii) understands and has taken cognizance of all risk factors related to the purchase of such Consenting Noteholder’s shares and (iii) is able to bear the economic risk of the investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are shares for an indefinite period of time and can afford to suffer a speculative investment which involves a high degree of risk of complete loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;shares.
(f) Such Consenting Noteholder Seller has been informed that the offer of the Share Consideration is being made pursuant to an exemption from the registration requirements of the Securities Act relating to transactions by an issuer not employed involving a public offering, and that, consequently, the materials relating to the offer have not been subject to review and comment by the staff of the Securities and Exchange Commission or any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; andother Governmental Authority.
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) The purchase of the Share Consideration by Sellers is to be made under a prospectus exemption available under Canadian Securities Act Laws.
(h) Such Seller is not subscribing for the Share Consideration as a result of, or subsequent to, any advertisement, article, notice or other communication published in any newspapers, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a Person not previously known to such Seller, in connection with investments in securities generally.
(i) Such Seller understands and acknowledges that any upon the original issuance of the Share Consideration and until such time as the same is no longer required under applicable requirements of applicable securities Laws, including United States federal and state securities Laws, certificates representing the Buyer Parent Shares comprising the Share Consideration, and all certificates issued in exchange therefor or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests in substitution thereof, shall bear legends restricting the transfer of such New Equity Interests.following legend: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR U.S. STATE SECURITIES LAWS. BY PURCHASING OR OTHERWISE HOLDING SUCH SECURITIES, THE HOLDER AGREES FOR THE BENEFIT OF VOXTUR ANALYTICS CORP. (THE “CORPORATION”) THAT THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY ONLY (A) TO THE CORPORATION; OR
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Except as contemplated by Section 8.12 hereof, each Stockholder recognizes and understands that the Merger Consideration to be issued to each Stockholder pursuant to this Agreement (within the meaning of Rule 144A "securities") will not be registered under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”securities laws of any state (the "securities laws"), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and . The securities are not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been being so registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of upon exemptions from the Securities Act and the securities laws which are predicated, in part, on the representations, warranties and agreements of each Stockholder contained herein and in investor questionnaires required hereunder. Each Stockholders' residence and domicile, in the case of each natural person, is in the State set forth opposite his or her name on Part 4A.6 of the Disclosure Schedule, and the principal office of each Stockholder that is not a natural person is in the State set forth opposite its name on Part 4A.6 of the Disclosure Schedule. Each Stockholder understands that no BCC Party is under any obligation to file a registration statement or take any other action under the securities laws with respect to the Merger Consideration except as contemplated in Section 8.12. (b) Each Stockholder agrees that the stock certificates or statements related representing such Stockholder's Merger Consideration to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting be acquired pursuant to this Agreement will be imprinted with the following legend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Each Stockholder understands and agrees that appropriate stop transfer notations will be placed in the records of such New Equity InterestsBCC and with its transfer agent in respect of the securities which are to be issued to each Stockholder pursuant to this Agreement.
Appears in 1 contract
Securities Laws Matters. Each of Seller and Xxxxxxxxx understands that the Purchaser common stock to be issued in the Transactions (athe "SECURITIES") Such Consenting Noteholder is either a “qualified institutional buyer” has not been registered under the Securities Act of 1933, as amended (within the meaning of Rule 144A under "SECURITIES ACT") and that the Securities are being offered and sold pursuant to an exemption from registration contained in the Securities Act, a “QIB”) or an “accredited investor” (based in part upon the Seller's representations contained in this Agreement and the representations of the holders of outstanding Equity Securities of the Seller contained in the Investor Questionnaires of such holders, substantially in the form of Exhibit H. Seller represents and warrants as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;follows:
(ba) Such Consenting Noteholder’s financial situation is such Each of Seller and Xxxxxxxxx, acting upon advice of its professional advisors, shareholders and board of directors, has substantial experience in evaluating and investing in private placement transactions of securities in companies similar to the Purchaser so that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s this investment in the New Equity Interests acquired Purchaser and has the capacity to protect its, and its shareholders, interests in the Transactions. Each of Seller and Xxxxxxxxx represents that by such Consenting Noteholder hereunder;reason of its business or financial experience, it has the capacity to protect its own interests in connection with the Transactions. Further, Seller and Xxxxxxxxx are aware of no publication of any advertisement in connection with the Transactions. Seller and Xxxxxxxxx must bear the economic risk of this investment until the Securities are registered pursuant to the Securities Act. Each of Seller and Xxxxxxxxx has been advised or is aware of the provisions of Rule 144 promulgated under the Securities Act, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions.
(db) Such Consenting Noteholder understands that Each of Seller and Xxxxxxxxx is an "accredited investor" within the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree meaning of risk of loss Rule 501 of the entire investment thereinrules and regulations promulgated under the Securities Act. 20
(c) Each of Seller and Xxxxxxxxx has received and read Purchaser's Information Statement, that there will which includes its Annual Report on Form 10-K for the year ended December 31, 2001, and has had an opportunity to discuss Purchaser's business, management and financial affairs, both as currently conducted and as proposed to be substantial restrictions on the transferability of such New Equity Interests and that conducted following the Closing there will be no public market for such New Equity Interests Transaction, with directors, officers and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case management of emergency or otherwise;
(e) Such Consenting Noteholder Purchaser and has been given had the opportunity to examine all documents review Purchaser's operations and facilities. Seller and Xxxxxxxxx have also had the opportunity to ask questions of, and to receive answers from, the Company Entities Purchaser and their respective Representatives concerning the Company Entities, its management regarding the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interestsinvestment.
Appears in 1 contract
Samples: Asset Purchase Agreement (Raindance Communications Inc)
Securities Laws Matters. Each Member hereby represents and warrants to Zoll that with respect to such Member's receipt of Zoll Common Stock hereunder:
(a) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and Each Member is acquiring the equity interests in Newco and GP (collectivelyZoll Common Stock for his own account, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) investment, and not with a view toto any "distribution" thereof within the meaning of the Securities Act of 1933, or for sale as amended (the "Securities Act"). Each Member is knowledgeable and experienced in connection withthe making of investments of the type involved in the acquisition of the Zoll Common Stock pursuant to the Agreement, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford able to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s its investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment thereinZoll, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given granted the opportunity to examine all documents investigate the affairs of the Zoll and to ask questions ofof their officers and employees regarding the business, assets, liabilities, financial condition, cash flow and operations of Zoll, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions has availed himself of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder opportunity either directly or through his authorized representative; each Member acknowledges that the Company Entities have he has made available to his own independent examination, investigation, analysis and evaluation of Zoll, including his own estimation of Zoll's business; each Member acknowledges that he has undertaken such Consenting Noteholder all agreementsdue diligence as he has deemed adequate. Except as set forth on SCHEDULE 3.2, documents, records and books that such Consenting Noteholder has requested relating to each Member is an investment "accredited investor" as defined in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this AgreementSecurities Act; and
(gb) Such Consenting Noteholder Each Member understands that New Equity Interests because the shares of Zoll Common Stock have not been registered under the Securities Act in reliance on an exemption therefrom nor under Section 4(a)(2) securities or "blue sky" laws of any jurisdiction, he cannot dispose of any or all of the shares of the Zoll Common Stock unless such Zoll Common Stock is subsequently registered under the Securities Act or exemption from such registration is available. Each Member acknowledges and understands he has no right to require Zoll to register the Zoll Common Stock, except as set forth in the Registration Rights Agreement among Zoll and the Members of even date herewith. Each Member further understands that any certificates or statements related Zoll may, as a condition to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interestsany shares of Zoll Common Stock, require that the request for transfer be accompanied by an opinion of counsel as described below. Each Member understands that each certificate representing the Zoll Common Stock will bear a legend in substantially the form provided below (in addition to any legend required under applicable state securities laws). THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER NAMED HEREON FOR THE HOLDER'S OWN ACCOUNT FOR INVESTMENT; AND SUCH SECURITIES MAY NOT BE PLEDGED, SOLD OR IN ANY OTHER WAY TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS IN EFFECT AT THAT TIME, OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Zoll Medical Corporation)
Securities Laws Matters. (a) Such Consenting Noteholder is either a GA Stockholder acknowledges that (i) QTS REIT intends the offer and issuance of the Class A Common Stock hereunder to be exempt from registration under the Securities Act and applicable state securities laws by virtue of the status of GA Stockholder as an “qualified institutional buyeraccredited investor” (within the meaning of Rule 144A 501(a) of Regulation D under the Securities Act, a Act (“QIBRegulation D”) or an “accredited investor” (as defined acquiring such shares of Class A Common Stock in transactions exempt from registration pursuant to Rule 501(a) under the Securities Act, an “AI”)506 of Regulation D, and (ii) in issuing any shares of Class A Common Stock pursuant to the terms of this Agreement, QTS REIT is acquiring relying on the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;representations made by GA Stockholder as follows:
(b) Such Consenting Noteholder’s GA Stockholder has had access to and has received such financial situation and other information regarding QTS REIT as GA Stockholder deems necessary in order to make its investment decision to acquire the Class A Common Stock to be issued to Investor hereunder. GA Stockholder has not relied on representations, warranties, opinions, projections, financial or other information or analysis, if any, supplied to it by any person other than QTS REIT, its Affiliates or its representatives.
(c) GA Stockholder is a sophisticated investor and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the acquisition of the Class A Common Stock hereunder, and GA Stockholder is able to bear the economic risks of such an investment. GA Stockholder is aware that it can afford may be required to bear the economic risk of holding an investment in the New Equity Interests Class A Common Stock for an indefinite period of time, and it is able to bear such Consenting Noteholder can afford risk for an indefinite period. GA Stockholder has relied upon its own tax, legal and financial advisors in connection with its decision to suffer acquire the complete loss Class A Common Stock issued to GA Stockholder hereunder. GA Stockholder is an “accredited investor” within the meaning of such Consenting Noteholder’s investment in such New Equity Interests;
(cRule 501(a) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;Regulation D.
(d) Such Consenting Noteholder understands that GA Stockholder is acquiring the New Equity Interests acquired by such Consenting Noteholder Class A Common Stock to be issued hereunder are for its own account and not with a speculative investment which involves a high degree view to or for the purposes of risk of loss of the entire investment thereinresale, that there will be substantial restrictions on the transferability distribution or fractionalization, in whole or in part, of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;Class A Common Stock.
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder GA Stockholder acknowledges that the Company Entities have Class A Common Stock to be issued hereunder has not been registered under the Securities Act and is being offered and sold to GA Stockholder in reliance on specific exemptions from the registration requirements of U.S. securities laws and that QTS REIT is relying upon the truth and accuracy of the representations and warranties of GA Stockholder set forth in this Section 3.10 in order to determine the applicability of such exemptions and the suitability of GA Stockholder to acquire the Class A Common Stock. GA Stockholder agrees that if any such representation and warranty made available in this Section 3.10 is no longer accurate, it shall promptly notify QTS REIT. GA Stockholder acknowledges that if it decides to resell or otherwise transfer any of its Class A Common Stock, then such Consenting Noteholder all agreements, documents, records and books shares may be resold or transferred only if sold in a transaction that such Consenting Noteholder has requested relating to an investment in does not require registration under the New Equity Interests acquired by such Consenting Noteholder hereunder;Securities Act or any applicable laws of the states of the United States.
(f) Such Consenting Noteholder has not employed GA Stockholder agrees that so long as the Class A Common Stock to be issued to GA Stockholder hereunder are “restricted securities” as defined in Rule 144 under the Securities Act, it shall notify each transferee of any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
shares of Class A Common Stock from it that (gi) Such Consenting Noteholder understands that New Equity Interests such shares have not been registered under the Securities Act, (ii) such shares are subject to the restrictions on the resale or other transfer thereof described in paragraph (e) above, (iii) such transferee shall be deemed to have represented (x) as to its status as a purchaser acquiring such shares in a transaction that does not require registration under the Securities Act in reliance on or any applicable laws of the states of the United States and (y) that such transferee is not an exemption therefrom under “underwriter” within the meaning of Section 4(a)(22(11) of the Securities Act and that any certificates or statements related (iv) such transferee shall be deemed to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting have agreed to notify its subsequent transferees as to the transfer of such New Equity Interestsforegoing.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder The Seller and each Stockholder has such knowledge, skill and experience in business, financial and investment matters that each is either a “qualified institutional buyer” capable of evaluating the merits and risks of an investment in Newpark Common Stock. With the assistance of their respective professional advisors, to the extent that the Seller or any Stockholder has deemed appropriate, the Seller and each Stockholder has made its own legal, Tax, accounting and financial evaluation of the merits and risks of an investment in Newpark Common Stock. The Seller and each Stockholder has considered the suitability of the Newpark Stock Consideration as an investment in light of its own circumstances and financial condition and is able to bear the risks associated with an investment in the Newpark Stock Consideration.
(within the meaning of Rule 144A under the Securities Act, a “QIB”b) or The Seller and each Stockholder is an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and .
(c) The Seller is acquiring the equity interests in Newco and GP (collectivelyNewpark Stock Consideration solely for its own beneficial account, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) purposes, and not with a view to, or for sale resale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such of the Newpark Stock Consideration in a manner that it can afford to bear would require registration under or violate the economic risk registration requirements of holding the New Equity Interests for an indefinite period of time, any state or federal securities Law. The Seller and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder each Stockholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree shares of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests Newpark Common Stock issued as Newpark Stock Consideration have not been registered under the Securities Act or any state securities Laws by reason of specific exemptions under the provisions thereof which depend in reliance on an exemption therefrom part upon the investment intent of the Seller and the other representations made by the Seller and the Stockholders in this Agreement. The Seller and each Stockholder understands that Buyer is relying upon the representations and agreements contained in this Section 4.25 and any supplemental information provided by the Seller or any Stockholder for the purpose of determining whether this transaction meets the requirements for such exemptions.
(d) The Seller and each Stockholder understands that the shares of Newpark Common Stock issued hereunder as Newpark Stock Consideration are “restricted securities” under Section 4(a)(2) of applicable federal securities laws and that the Securities Act and the rules of the U.S. Securities and Exchange Commission (the “SEC”) provide in substance that such shares may only be disposed pursuant to an effective registration statement under the Securities Act or an exemption therefrom, and the Seller and each Stockholder understands that Newpark has no obligation or present intention to register any of such shares. The Seller and each Stockholder further understands that any certificates or statements related to representing such shares will be imprinted with a legend in substantially the following form (and that similar restrictions will be noted in the transfer agent’s and registrar’s records for any such shares issued in book-entry accounts representing form): “THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS.”
(e) For the avoidance of doubt, the foregoing representations and warranties of the Seller set forth in subsections (a) through (d) shall not prohibit the Seller from distributing all or otherwise evidencing any New Equity Interests portion of the Newpark Stock Consideration to its Stockholders and the Buyer agrees that any such action undertaken shall bear legends restricting the transfer not be a breach of such New Equity Interestsrepresentations and warranties of the Seller.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Except as expressly set forth in the Registration Rights Agreements, Seller recognizes and understands that the Stock Consideration, the warrants described in Section 3.1, and the Common Stock issued upon exercise of such warrants (within collectively, the meaning of Rule 144A "Securities") will not be registered under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the securities laws of any state (the Securities ActAct and such securities laws, an “AI”collectively the "Securities Laws"). The Securities are not being so registered in reliance upon exemptions from the Securities Laws which are predicated, in part, on the representations, warranties and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account agreements of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;Seller contained herein.
(bi) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Seller has business knowledge and experience, such experience in financial and business matters are such that such Consenting Noteholder being based on actual participation therein, (ii) Seller is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests Securities and the suitability thereof as an investment therefor, (iii) the Securities will be acquired by such Consenting Noteholder hereunder;
solely for investment and not with a view toward resale or redistribution in violation of the Securities Laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of Purchaser or Rush or any Affiliate thereof or as to the value of the Securities and (v) Seller is an "accredited investor" within the meaning of (i) Regulation D promulgated by this Agreement; andthe SEC pursuant to the Securities Act and (ii) the New Mexico Securities Act and the regulations promulgated thereunder. Seller understands that neither Purchaser nor Rush is under any obligation to file a registration statement or to take any other action under the Securities Laws with respect to any such Securities except as expressly set forth in the Registration Rights Agreements.
(gc) Such Consenting Noteholder understands Seller has consulted with Seller's own counsel in regard to the Securities Laws and is fully aware (i) of the circumstances under which Seller is required to hold the Securities, (ii) of the limitations on the transfer or disposition of the Securities, (iii) that New Equity Interests have not been the Securities must be held indefinitely unless the transfer thereof is registered under the Securities Act in reliance on Laws or an exemption therefrom from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the Securities. Seller has been advised by Seller's counsel as to the provisions of Rules 144 and 145 as promulgated by the Commission under Section 4(a)(2) of the Securities Act and has been advised of the applicable limitations thereof. Seller acknowledges that Purchaser and Rush are relying upon the truth and accuracy of the representations and warranties in this Section 4.18 by Seller in consummating the transactions contemplated by this Agreement without registering the Securities under the Securities Laws.
(d) Seller has been furnished with (i) the definitive proxy statement filed with the Commission in connection with the annual meeting of stockholders of Rush held on May 18, 1999 and (ii) copies of Rush's Amendment No. 2 to Form S-1 Registration Statement and Prospectus to Form S-1 filed on Form 424(b)(4), Annual Report on Form 10-K for the year ended December 31, 1998, and Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999, filed with the Commission under the Exchange Act. Seller has been furnished with the complete financial statements of Rush for the fiscal years ended 1996, 1997 and 1998. Seller has been furnished with a summary description of the terms of the Common Stock and Purchaser and Rush have made available to Seller the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any additional information which they possess or could reasonably acquire for the purpose of verifying the accuracy of information furnished to Seller as set forth herein or for the purpose of considering the transactions contemplated hereby. Rush has offered to make available to Seller upon request at any time all exhibits filed by Rush with the Commission as part of any of the reports filed therewith.
(e) Seller agrees that the certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the Securities will be imprinted with the following legend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Seller understands and agrees that appropriate stop transfer notations will be placed in the records of such New Equity InterestsRush and with its transfer agent in respect of the Securities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rush Enterprises Inc \Tx\)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” The Closing Stock Consideration (within which also comprise the meaning of Rule 144A under the Securities Act, a “QIB”Escrowed Shares) to be issued to Seller (or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”its designees) hereunder for investment for such Consenting Noteholder’s own account (or is being acquired for the account of a QIB or an AI) Seller for the purpose of investment and not with a view toto the resale or distribution thereof except pursuant to an effective registration under the Securities Act and applicable state securities laws, or for sale in connection with, any distribution thereof;pursuant to an available exemption from such registration requirement.
(bi) Such Consenting Noteholder’s Seller is familiar with the business to be conducted by Buyer, taking into account the consummation of the transactions contemplated hereby; (ii) prior to the date hereof, Seller has had the opportunity to ask questions and receive answers from Representatives of Buyer concerning the business, financial situation is such condition and prospects of Buyer and the Closing Stock Consideration to be issued to Seller (or its designees) hereunder; and (iii) Seller has received any additional information concerning Buyer that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;Seller has requested.
(c) Such Consenting Noteholder’s Seller and, if applicable, each of its designees to whom Closing Stock Consideration will be issued, (i) is (and each of its designees, if any, will be) an “accredited investor,” as such term is defined in Rule 501 of Regulation D under the Securities Act; and (ii) has (and each of its designees, if any, will have) such knowledge and experience in financial and business matters are that Seller (or such that such Consenting Noteholder designee) is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder acquisition of the Closing Stock Consideration to be issued to Seller hereunder;.
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder Seller acknowledges that the Company Entities have made available Closing Stock Consideration to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder be issued to Seller (or its designees) hereunder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act Act, that such Closing Stock Consideration constitute “restricted securities” as defined in reliance on an exemption therefrom Rule 144 adopted under Section 4(a)(2) of the Securities Act, and that such Closing Stock Consideration cannot be resold without registration under the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of under an exemption from such New Equity Interestsregistration.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” The Escrow Stockholders represent and warrant that (within the meaning of Rule 144A under the Securities Act, a “QIB”i) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Escrow Stockholder has business knowledge and experience, such experience in financial and business matters are being based on actual participation therein, (ii) such that such Consenting Noteholder Escrow Stockholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests Merger Consideration and the suitability thereof as an investment therefor, (iii) the Merger Consideration to be acquired by such Consenting Noteholder hereunder;
Escrow Stockholder in connection with this Agreement will be acquired solely for investment and not with a view toward resale or redistribution in violation of the securities laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of the BCC Parties or either of them or as to the value of the Stock Consideration, (v) each Escrow Stockholder is an "accredited investor," as that term is defined in Regulation D promulgated by this Agreement; andthe SEC pursuant to the Securities Act, as that term is defined in Regulation D promulgated by the SEC pursuant to the Securities Act, and (vi) each Escrow Stockholder represents and warrants that such Escrow Stockholder has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the transactions contemplated and contained herein. Each Escrow Stockholder understands that none of the BCC Parties is under any obligation to file a registration statement or to take any other action under the securities laws with respect to the Stock Consideration except as contemplated by Section 8.12.
(gb) Each Escrow Stockholder is fully aware (i) of the circumstances under which such Escrow Stockholder is required to hold the securities, (ii) of the limitations on the transfer or disposition of the securities, (iii) that the securities must be held indefinitely unless the transfer thereof is registered under the securities laws or an exemption from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the securities. Such Consenting Noteholder understands that New Equity Interests have not Escrow Stockholder has been registered advised as to the provisions of Rules 144 and 145 as promulgated by the SEC under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) and has been advised of the Securities Act applicable limitations thereof. Such Escrow Stockholder acknowledges that the BCC Parties are relying upon the truth and that accuracy of the representations and warranties in this Section 4.27 by such Escrow Stockholder in consummating the transactions contemplated by this Agreement without registering the securities under the securities laws.
(c) Each Escrow Stockholder has been furnished with BCC's Annual Report on Form 10-K for the year ended September 30, 1999, BCC's Quarterly Report on Form 10-Q for the quarter ended December 31, 1999, BCC's proxy statement with respect to the Annual Meeting of Stockholders held on March 22, 2000, BCC's Current Reports on Form 8-K filed February 25, 2000, and BCC's Registration Statement on Form S-3 dated January 28, 2000 (such documents collectively referred to herein as the "SEC Documents"). Such Escrow Stockholder has been furnished with the complete financial statements of BCC for the fiscal years ended September 30, 1998 and 1999, and the three months ended December 31, 1999. The BCC Parties have made available to such Escrow Stockholder the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any certificates additional information which they possess or statements related could reasonably acquire for the purpose of verifying the accuracy of information furnished to book-entry accounts representing such Escrow Stockholder as set forth herein or otherwise evidencing for the purpose of considering the transactions contemplated hereby. BCC has offered to make available to such Escrow Stockholder upon request at any New Equity Interests shall bear legends restricting time all exhibits filed by BCC with the transfer Commission as part of such New Equity Interestsany of the reports filed therewith.
Appears in 1 contract
Securities Laws Matters. The following additional representations and warranties are made, severally and not jointly, by each of the Principal Stockholders:
(a) Such Consenting Noteholder is either a “qualified institutional buyer” (within Principal Stockholder recognizes and understands that the meaning of Rule 144A Parent Common Stock to be issued to the Principal Stockholders pursuant to the Merger will not be registered under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an securities laws of any state (the “AIsecurities laws”). The shares of Parent Common Stock are not being so registered in reliance upon exemptions from the Securities Act and the securities laws which are predicated, in part, on the representations, warranties and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for agreements of such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;Principal Stockholder contained herein.
(bi) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Principal Stockholders has business knowledge and experience, such experience in financial and business matters are being based on actual participation therein, (ii) such that such Consenting Noteholder Principal Stockholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests shares of Parent Common Stock and the suitability thereof as an investment therefor, (iii) the shares of Parent Common Stock to be acquired by such Consenting Noteholder hereunder;
Principal Stockholder in connection with the Merger will be acquired solely for investment and not with a view toward resale or redistribution in violation of the securities laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of Parent or as to the value of the shares of Parent Common Stock issued in the Merger and (v) upon consummation of the transactions contemplated by this Agreement; and, such Principal Stockholders will be an “accredited investor” within the meaning of Regulation D promulgated by the SEC pursuant to the Securities Act. Such Principal Stockholder understands that Parent is not under any obligation to file a registration statement or to take any other action under the securities laws with respect to any shares of Parent Common Stock.
(gc) Such Consenting Noteholder understands Principal Stockholder has consulted with his or her own counsel in regard to the securities laws and is fully aware (i) of the circumstances under which such Principal Stockholder is required to hold the shares of Parent Common Stock, (ii) of the limitations on the transfer or disposition of the shares of Parent Common Stock, (iii) that New Equity Interests have not the shares of Parent Common Stock must be held indefinitely unless the transfer thereof is registered under the securities laws or an exemption from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the shares of Parent Common Stock. Such Principal Stockholder has been registered advised by his or her own counsel as to the provisions of Rules 144 and 145 as promulgated by the Commission under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) and have been advised of the Securities Act applicable limitations thereof. Such Principal Stockholder acknowledges that Parent is relying upon the truth and accuracy of the representations and warranties in this Section 3.04 by such Principal Stockholder in consummating the transactions contemplated by this Agreement without registering the shares of Parent Common Stock under the securities laws.
(d) Such Principal Stockholder has been furnished with (i) the definitive proxy statement filed with the SEC in connection with the annual meeting of stockholders of Parent held on June 1, 2006 and (ii) copies of Parent’s Annual Report on Form 10-K for the year ended December 31, 2005, and Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006 and June 30, 2006, filed with the SEC under the Exchange Act. Such Principal Stockholder has been furnished with a summary description of the terms of the Parent Common Stock and Parent has made available to such Principal Stockholder the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any additional information which they possess or could reasonably acquire for the purpose of verifying the accuracy of information furnished to such Principal Stockholder as set forth herein or for the purpose of considering the transactions contemplated hereby. Parent has offered to make available to such Principal Stockholder upon request at any time all exhibits filed by GlobalSCAPE with the SEC as part of any of the reports filed therewith.
(e) Such Principal Stockholder agrees that any the certificates representing his or statements related her shares of Parent Common Stock to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting be acquired pursuant to the Merger will be imprinted with the following legend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE “RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Such Principal Stockholder understands and agrees that appropriate stop transfer notations will be placed in the records of Parent and with its transfer agent in respect of the securities which are to be issued to such New Equity InterestsPrincipal Stockholder in the Merger.
Appears in 1 contract
Samples: Merger Agreement (Globalscape Inc)
Securities Laws Matters. (a) Such Consenting Noteholder Seller has such knowledge, skill and experience in business, financial and investment matters that Seller is either a “qualified institutional buyer” capable of evaluating the merits and risks of an investment in Xxxxx Common Stock. With the assistance of its own professional advisors, to the extent that Seller has deemed appropriate, Seller has made its own legal, Tax, accounting and financial evaluation of the merits and risks of an investment in Xxxxx Common Stock. Seller has considered the suitability of the Share Consideration as an investment in light of its own circumstances and financial condition and is able to bear the risks associated with an investment in the Share Consideration.
(within the meaning of Rule 144A under the Securities Act, a “QIB”b) or Seller is an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and .
(c) Seller is acquiring the equity interests in Newco and GP (collectivelyShare Consideration solely for its own beneficial account, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) purposes, and not with a view to, or for sale resale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such of the Share Consideration in a manner that it can afford to bear would require registration under or violate the economic risk registration requirements of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder any state or federal securities Law. Seller understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree shares of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests Xxxxx Common Stock issued as Share Consideration have not been registered under the Securities Act or any state securities Laws by reason of specific exemptions under the provisions thereof which depend in reliance on an exemption therefrom part upon the investment intent of Seller and the other representations made by Seller in this Agreement. Seller understands that Buyer is relying upon the representations and agreements contained in this Section 3.26 (and any supplemental information provided by Seller) for the purpose of determining whether this transaction meets the requirements for such exemptions.
(d) Seller understands that the shares of Xxxxx Common Stock issued hereunder as Share Consideration are “restricted securities” under Section 4(a)(2) of applicable federal securities laws and that the Securities Act and the rules of the U.S. Securities and Exchange Commission (the “SEC”) provide in substance that Seller may dispose of such shares only pursuant to an effective registration statement under the Securities Act or an exemption therefrom, and Seller understands that the Company has no obligation or present intention to register any of such shares. Seller further understands that any certificates or statements related to representing such shares will be imprinted with a legend in substantially the following form (and that similar restrictions will be noted in the transfer agent’s and registrar’s records for any such shares issued in book-entry accounts representing form): “THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS.”
(e) For the avoidance of doubt, the foregoing representations and warranties of Seller set forth in subsections (a) through (d) shall not prohibit (i) Seller from distributing all or otherwise evidencing any New Equity Interests portion of the Share Consideration to any of its members (a “Member Transferee”) or (ii) Seller or such Member Transferee from selling all or any portion of the Share Consideration at any time pursuant to the Shelf Registration Statement upon its effectiveness and the Buyer agrees that any such actions undertaken shall bear legends restricting the transfer not be a breach of such New Equity Interestsrepresentations and warranties of Seller (and certification of a Member Transferee pursuant to subsection (f)).
(f) Seller has, prior to the time it sought to obtain the consent or vote of any of its security holders or members regarding the transactions contemplated by this Agreement, obtained the written acknowledgement, representation and agreement of each such security holder or member as to the matters set forth in Exhibit F.
Appears in 1 contract
Securities Laws Matters.
(a) Such Consenting Noteholder is either a “qualified institutional buyer” (within Seller has been advised that shares constituting the meaning of Rule 144A Share Consideration, the Initial Promissory Note and the Closing Promissory Note have not been and will not be registered under the Securities ActAct or any U.S. state securities laws, a “QIB”) that such securities may not be sold or otherwise disposed of unless they are registered thereunder or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), exemption from registration is available and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for that accordingly such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford Seller may be required to bear the economic risk of holding the New Equity Interests investment in such securities for an indefinite period of time.
(b) If such Seller is entitled to receive Buyer Parent Shares, Initial Promissory Notes or Closing Promissory Notes hereunder, such Seller is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act, and such Consenting Noteholder can afford has duly completed and executed a U.S. Accredited Investor Certificate in the form set out as Exhibit “G” for delivery to suffer Buyer at or before the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;Execution Date.
(c) Such Consenting NoteholderSeller is acquiring the Share Consideration, the Initial Promissory Note and the Closing Promissory Note for investment for such Seller’s own account and presently does not have a view to sell or resell any of the Share Consideration, the Initial Promissory Note or the Closing Promissory Note except in compliance with and as permitted by Law, including the Securities Act, Canadian Securities Laws and applicable U.S. state securities laws.
(d) Such Seller has been given the opportunity to obtain information and documents (including, without limitation, information and documents filed by Buyer Parent with Canadian Securities Administrators and available on the internet at xxx.xxxxx.xxx), and to ask questions and receive answers about such information and documents, Buyer Parent and the business and prospects of Buyer Parent, and such Seller acknowledges and agrees that no representations concerning such matters or any other matters related to such investment have been made to such Seller except as expressly set forth in this Agreement. Such Seller has consulted its own attorney, accountant or investment advisor with respect to the investment contemplated hereby and its suitability therefor, including the Tax and other economic considerations related to such Seller’s investment in the Buyer Parent Shares.
(e) Such Seller (i) has knowledge and experience in financial and business matters are such that such Consenting Noteholder Seller is capable of evaluating the merits and risks of the purchase of Buyer Parent Shares as contemplated by this Agreement, (ii) understands and has taken cognizance of all risk factors related to the purchase of such Consenting Noteholder’s shares and (iii) is able to bear the economic risk of the investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are shares for an indefinite period of time and can afford to suffer a speculative investment which involves a high degree of risk of complete loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;shares.
(f) Such Consenting Noteholder Seller has not employed any investment bankerbeen informed that the offer of the Share Consideration, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under Initial Promissory Note and the Securities Act in reliance on Closing Promissory Note is being made pursuant to an exemption therefrom under Section 4(a)(2) from the registration requirements of the Securities Act and applicable U.S. state securities laws relating to transactions by an issuer not involving a public offering, and that, consequently, the materials relating to the offer have not been subject to review and comment by the staff of the Securities and Exchange Commission or any other Governmental Authority.
(g) The purchase of the Share Consideration, the Initial Promissory Note and the Closing Promissory Note by Sellers is to be made under a prospectus exemption available under Canadian Securities Laws.
(h) Such Seller is not subscribing for the Share Consideration, and has not agreed to accept the Initial Promissory Note or the Closing Promissory Note as a result of, or subsequent to, any advertisement, article, notice or other communication published in any newspapers, magazine or similar media or broadcast over television or radio, or presented at any seminar or meeting, or any solicitation of a subscription by a Person not previously known to such Seller, in connection with investments in securities generally.
(i) Such Seller understands and acknowledges that any upon the original issuance of the Share Consideration, the Initial Promissory Note and the Closing Promissory Note, and until such time as the same is no longer required under applicable requirements of applicable securities Laws, including Canadian Securities Laws and United States federal and state securities Laws, certificates representing the Buyer Parent Shares comprising the Share Consideration, and all certificates issued in exchange therefor or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests in substitution thereof, the Initial Promissory Note and the Closing Promissory Note shall bear legends a legend restricting the transfer of such New Equity Interestsshares in accordance with applicable securities Laws, including Canadian Securities Laws and United States federal and state securities Laws.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder The Holder represents, by accepting this Warrant, that it understands that this Warrant and any securities obtainable upon exercise of this Warrant have not been registered for sale under Federal or state securities laws and are being offered and sold to the Holder pursuant to one or more exemptions from the registration requirements of such securities laws. The Holder further represents that it is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) within the meaning of Regulation D under the Securities Act. In the absence of an effective registration of such securities or an exemption therefrom, any certificates for such securities shall bear a legend similar to the legend set forth in Section 7(c) hereof. The Holder understands that it must bear the economic risk of its investment in this Warrant and any securities obtainable upon exercise of this Warrant for an “AI”)indefinite period of time, as this Warrant and such securities have not been registered under Federal or state securities laws and therefore cannot be sold unless subsequently registered under such laws, unless as exemption from such registration is available.
(b) The Holder, by his acceptance of this Warrant, represents to the Company that it is acquiring the equity interests in Newco this Warrant and GP (collectively, the “New Equity Interests”) hereunder will acquire any securities obtainable upon exercise of this Warrant for its own account for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
thereof in violation of the Securities Act. The Holder agrees that this Warrant and any such securities will not be sold or otherwise transferred unless (bi) Such Consenting Noteholder’s financial situation a registration statement with respect to such transfer is effective under the Securities Act and any applicable state securities laws or (ii) such that it can afford sale or transfer is made pursuant to bear one or more exemptions from the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;Securities Act.
(c) Such Consenting Noteholder’s knowledge and experience All certificates representing Warrant Shares issued upon exercise hereof shall be stamped or imprinted with a legend in financial and business matters are such that such Consenting Noteholder is capable of evaluating substantially the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment thereinTHE “SECURITIES ACT”), that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and thatOR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, accordinglyOFFERED FOR SALE, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessaryPLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT OR AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity InterestsANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Except as expressly set forth in the Registration Rights Agreement, Seller recognizes and understands that the warrants described in Section 3.1 and the Common Stock issued upon exercise of such warrants (within collectively, the meaning of Rule 144A "Securities") will not be registered under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the securities laws of any state (the Securities ActAct and such securities laws, an “AI”collectively the "Securities Laws"). The Securities are not being so registered in reliance upon exemptions from the Securities Laws which are predicated, in part, on the representations, warranties and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account agreements of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;Seller contained herein.
(bi) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Seller has business knowledge and experience, such experience in financial and business matters are such that such Consenting Noteholder being based on actual participation therein, (ii) Seller is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests Securities and the suitability thereof as an investment therefor, (iii) the Securities will be acquired by such Consenting Noteholder hereunder;
solely for investment and not with a view toward resale or redistribution in violation of the Securities Laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of Purchaser or Rush or any Affiliate thereof or as to the value of the Securities and (v) Seller is an "accredited investor" within the meaning of (i) Regulation D promulgated by this the SEC pursuant to the Securities Act and (ii) the Corporate Securities Laws of 1968 of the State of California and the regulations promulgated thereunder. Seller understands that neither Purchaser nor Rush is under any obligation to file a registration statement or to take any other action under the Securities Laws with respect to any such Securities except as expressly set forth in the Registration Rights Agreement; and.
(gc) Such Consenting Noteholder understands Seller has consulted with Seller's own counsel in regard to the Securities Laws and is fully aware (i) of the circumstances under which Seller is required to hold the Securities, (ii) of the limitations on the transfer or disposition of the Securities, (iii) that New Equity Interests have not been the Securities must be held indefinitely unless the transfer thereof is registered under the Securities Act in reliance on Laws or an exemption therefrom from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the Securities. Seller has been advised by Seller's counsel as to the provisions of Rules 144 and 145 as promulgated by the Commission under Section 4(a)(2) of the Securities Act and has been advised of the applicable limitations thereof. Seller acknowledges that Purchaser and Rush are relying upon the truth and accuracy of the representations and warranties in this Section 4.18 by Seller in consummating the transactions contemplated by this Agreement without registering the Securities under the Securities Laws.
(d) Seller has been furnished with (i) the definitive proxy statement filed with the Commission in connection with the annual meeting of stockholders of Rush held on May 18, 1999 and (ii) copies of Rush's Amendment No. 2 to Form S-1 Registration Statement and Prospectus to Form S-1 filed on Form 424(b)(4), Annual Report on Form 10-K for the year ended December 31, 1998, and Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999, filed with the Commission under the Exchange Act. Seller has been furnished with the complete financial statements of Rush for the fiscal years ended 1996, 1997 and 1998. Seller has been furnished with a summary description of the terms of the Common Stock and Purchaser and Rush have made available to Seller the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any additional information which they possess or could reasonably acquire for the purpose of verifying the accuracy of information furnished to Seller as set forth herein or for the purpose of considering the transactions contemplated hereby. Rush has offered to make available to Seller upon request at any time all exhibits filed by Rush with the Commission as part of any of the reports filed therewith.
(e) Seller agrees that the certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the Securities will be imprinted with the following legend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Seller understands and agrees that appropriate stop transfer notations will be placed in the records of such New Equity InterestsRush and with its transfer agent in respect of the Securities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Rush Enterprises Inc \Tx\)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” The Escrow Stockholders represent and warrant that (within the meaning of Rule 144A under the Securities Act, a “QIB”i) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Escrow Stockholder has business knowledge and experience, such experience in financial and business matters are being based on actual participation therein, (ii) such that such Consenting Noteholder Escrow Stockholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests Merger Consideration and the suitability thereof as an investment therefor, (iii) the Merger Consideration to be acquired by such Consenting Noteholder hereunder;
Escrow Stockholder in connection with this Agreement will be acquired solely for investment and not with a view toward resale or redistribution in violation of the securities laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of the BCC Parties or either of them or as to the value of the Stock Consideration, (v) each Escrow Stockholder is an "accredited investor," as that term is defined in Regulation D promulgated by this Agreement; andthe SEC pursuant to the Securities Act, as that term is defined in Regulation D promulgated by the SEC pursuant to the Securities Act, and (vi) each Escrow Stockholder represents and warrants that such Escrow Stockholder has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the transactions contemplated and contained herein. Each Escrow Stockholder understands that none of the BCC Parties is under any obligation to file a registration statement or to take any other action under the securities laws with respect to the Stock Consideration except as contemplated by SECTION 8.12.
(gb) Each Escrow Stockholder is fully aware (i) of the circumstances under which such Escrow Stockholder is required to hold the securities, (ii) of the limitations on the transfer or disposition of the securities, (iii) that the securities must be held indefinitely unless the transfer thereof is registered under the securities laws or an exemption from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the securities. Such Consenting Noteholder understands that New Equity Interests have not Escrow Stockholder has been registered advised as to the provisions of Rules 144 and 145 as promulgated by the SEC under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) and has been advised of the Securities Act applicable limitations thereof. Such Escrow Stockholder acknowledges that the BCC Parties are relying upon the truth and that accuracy of the representations and warranties in this SECTION 4.27 by such Escrow Stockholder in consummating the transactions contemplated by this Agreement without registering the securities under the securities laws.
(c) Each Escrow Stockholder has been furnished with BCC's Annual Report on Form 10-K for the year ended September 30, 1999, BCC's Quarterly Report on Form 10-Q for the quarter ended December 31, 1999, BCC's proxy statement with respect to the Annual Meeting of Stockholders held on March 22, 2000, BCC's Current Reports on Form 8-K filed February 25, 2000, and BCC's Registration Statement on Form S-3 dated January 28, 2000 (such documents collectively referred to herein as the "SEC Documents"). Such Escrow Stockholder has been furnished with the complete financial statements of BCC for the fiscal years ended September 30, 1998 and 1999, and the three months ended December 31, 1999. The BCC Parties have made available to such Escrow Stockholder the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any certificates additional information which they possess or statements related could reasonably acquire for the purpose of verifying the accuracy of information furnished to book-entry accounts representing such Escrow Stockholder as set forth herein or otherwise evidencing for the purpose of considering the transactions contemplated hereby. BCC has offered to make available to such Escrow Stockholder upon request at any New Equity Interests shall bear legends restricting time all exhibits filed by BCC with the transfer Commission as part of such New Equity Interestsany of the reports filed therewith.
Appears in 1 contract
Samples: Plan of Reorganization, Merger and Acquisition Agreement (Billing Concepts Corp)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Except as contemplated by SECTION 8.12 hereof, each Stockholder recognizes and understands that the Merger Consideration to be issued to each Stockholder pursuant to this Agreement (within the meaning of Rule 144A "securities") will not be registered under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the securities laws of any state (the "securities laws"). The securities are not being so registered in reliance upon exemptions from the Securities ActAct and the securities laws which are predicated, an “AI”)in part, on the representations, warranties and agreements of each Stockholder contained herein and in investor questionnaires required hereunder. Each Stockholders' residence and domicile, in the case of each natural person, is in the State set forth opposite his or her name on Part 4A.6 of the Disclosure Schedule, and the principal office of each Stockholder that is acquiring not a natural person is in the equity interests State set forth opposite its name on Part 4A.6 of the Disclosure Schedule. Each Stockholder understands that no BCC Party is under any obligation to file a registration statement or take any other action under the securities laws with respect to the Merger Consideration except as contemplated in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;SECTION 8.12.
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands Each Stockholder agrees that the New Equity Interests stock certificates representing such Stockholder's Merger Consideration to be acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there pursuant to this Agreement will be substantial restrictions on imprinted with the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entitieslegend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Each Stockholder understands and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges agrees that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment appropriate stop transfer notations will be placed in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees records of BCC and with its transfer agent in connection with respect of the transactions contemplated by securities which are to be issued to each Stockholder pursuant to this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interests.
Appears in 1 contract
Samples: Plan of Reorganization, Merger and Acquisition Agreement (Billing Concepts Corp)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder Jaguar Party acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records Issued OP Units and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests Issued Giants Shares have not been registered under the Securities Act in reliance or under any state securities Laws. Such Jaguar Party acknowledges (on behalf of itself and its Jaguar Designees) that the Issued OP Units and Issued Giants Shares to be acquired by such Jaguar Party or any of its Subsidiaries pursuant hereto are “restricted securities” as that term is defined by Rule 144(a)(3) under the Securities Act and under applicable state securities Laws and that, pursuant to such Laws, such Jaguar Party and its Jaguar Designees must hold such Issued OP Units and Issued Giants Shares until they are registered with the SEC and qualified by state authorities, or an exemption therefrom from such registration and qualification requirements is available and, other than as set forth in the Registration Rights Agreements, the Giants Parties have no obligation to register or qualify such units or shares for resale.
(b) Such Jaguar Party (i) acknowledges that it or any of its Subsidiaries is acquiring the Issued OP Units and Issued Giants Shares pursuant to an exemption from registration under Section 4(a)(2the Securities Act solely for investment with no present intention to distribute any of the Issued OP Units and Issued Giants Shares to any Person in violation of applicable securities Laws, (ii) will not sell or otherwise dispose of any of the Issued OP Units and Issued Giants Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities Laws, (iii) is an “accredited investor” (as that any certificates or statements related term is defined by Rule 501(a) of Regulation D under the Securities Act), and (iv) (x) has had access to book-entry accounts representing or and has received such financial and other information regarding the Jaguar Parties, the Operating Partnership, the Issued Giants Shares and/or the Issued OP Units, as applicable, that it deems necessary to make an informed investment decision regarding such Issued OP Units and Issued Giants Shares and (y) can bear the economic risk of an investment in the Issued OP Units and/or Issued Giants Shares indefinitely. Such Jaguar Party will have obtained questionnaires from each of its Jaguar Designees to which the Issued OP Units and Issued Giants Shares will be issued, which questionnaires shall contain, for the benefit of Giants and the Operating Partnership (as applicable), acknowledgements with respect to the matters covered in Section 4.5(a) and written representations from each such Jaguar Designee to the effect that that such Jaguar Designee is an “accredited investor” (as that term is defined by Rule 501(a) of Regulation D under the Securities Act) and that the preceding representations and warranties in this Section 4.5(b) are otherwise evidencing any New Equity Interests true, complete and correct with respect to such Jaguar Designee. To the knowledge of such Jaguar Party, each such questionnaire is true, complete and correct.
(c) Each Jaguar Party acknowledges that the Issued OP Units and Issued Giants Shares to be acquired by such Jaguar Party and its Jaguar Designees pursuant hereto, if certificated, shall bear the following legends restricting (in addition to any legend required under applicable state securities Laws): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND MAY NOT BE ENCUMBERED, PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHIN THE UNITED STATES EXCEPT PURSUANT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS.”
(d) In addition, such Jaguar Party acknowledges that the Issued Giants Shares are subject to restrictions on ownership and transfer of set forth in the Giants Charter, and the Giants Shares to be acquired by such New Equity InterestsJaguar Party and its Jaguar Designees pursuant hereto, if certificated, shall bear the following legends, or such other legend as may be required from time to time by the Giants Charter: “THE SECURITIES OF GIANTS (THE “COMPANY”) ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE, AMONG OTHERS, OF THE COMPANY’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE COMPANY’S CHARTER, (i) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES IN EXCESS OF 9.8% OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OR 9.8% (IN VALUE OR IN NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF ANY CLASS OR SERIES OF SHARES UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (ii) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES THAT WOULD RESULT IN THE COMPANY BEING “CLOSELY HELD” UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE COMPANY TO FAIL TO QUALIFY AS A REIT; AND (iii) ANY TRANSFER OF SHARES THAT, IF EFFECTIVE, WOULD RESULT IN THE SHARES BEING BENEFICIALLY OWNED BY FEWER THAN 100 PERSONS (AS DETERMINED UNDER THE PRINCIPLES OF SECTION 856(a)(5) OF THE CODE) SHALL BE VOID AB INITIO AND THE INTENDED TRANSFEREE SHALL ACQUIRE NO RIGHTS IN SUCH SHARES. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES WHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE COMPANY IN WRITING (OR, IN THE CASE OF AN ATTEMPTED TRANSACTION, GIVE AT LEAST 15 DAYS PRIOR WRITTEN NOTICE). IF ANY OF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP AS SET FORTH IN (i) AND (ii) ABOVE ARE VIOLATED, THE SHARES IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS WILL BE AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN ADDITION, THE COMPANY MAY REDEEM SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD IN ITS SOLE DISCRETION IF THE BOARD DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL CAPITALIZED TERMS IN THIS NOTICE HAVE THE MEANINGS DEFINED IN THE COMPANY’S CHARTER, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF SHARES ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.”
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Seller recognizes and understands that the Promissory Notes, the Stock Options and the Tristar Stock to be issued upon the exercise of the Stock Options (within the meaning of Rule 144A "SECURITIES") will not be registered under the Securities Act, a “QIB”) Act or an “accredited investor” (as defined in Rule 501(a) under the securities laws of any state (the Securities Act, an “AI”), Act and is acquiring the equity interests in Newco and GP (such securities laws collectively, "SECURITIES LAWS"). The securities are not being so registered in reliance upon exemptions from the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for Securities Act and the account securities laws which are predicated, in part, on the representations, warranties and agreements of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;Seller contained herein.
(b) Such Consenting Noteholder’s financial situation is such Seller represents and warrants that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(ci) Such Consenting Noteholder’s Seller has business knowledge and experience, such experience in financial and business matters are such that such Consenting Noteholder being based on actual participation therein, (ii) Seller is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests Securities and the suitability thereof as an investment therefor, (iii) the Securities to be acquired by such Consenting Noteholder hereunder;
Seller will be acquired solely for investment and not with a view toward resale or redistribution in violation of the Securities Laws, (fiv) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated hereby, no assurances have been made concerning the future results of the Tristar or the Surviving Corporation or any Affiliate thereof or as to the value of the Securities and (vi) Seller is an "accredited investor" within the meaning of Regulation D promulgated by this Agreement; andthe SEC pursuant to the Securities Act and regulations promulgated thereunder. Except as set forth in SECTION 5.5, Seller understands that none of the Tristar Parties is under any obligation to file a registration statement or to take any other action under the Securities Laws with respect to any such securities.
(gc) Such Consenting Noteholder understands Seller has consulted with Seller's own counsel in regard to the Securities Laws and is fully aware (i) of the circumstances under which Seller is required to hold the Securities, (ii) of the limitations on the transfer or disposition of the Securities, (iii) that New Equity Interests have not been the Securities must be held indefinitely unless the transfer thereof is registered under the Securities Act in reliance on Laws or an exemption therefrom from registration is available and (iv) that no exemption from registration is likely to become available for at least one year from the date of acquisition of the Securities. Seller has been advised by Seller's counsel as to the provisions of Rules 144 and 145 as promulgated by the SEC under Section 4(a)(2) of the Securities Act and has been advised of the applicable limitations thereof. Seller acknowledges that the Tristar Parties are relying upon the truth and accuracy of the representations and warranties in this SECTION 4.28 by Seller in consummating the transactions contemplated by this Agreement without registering the Securities under the Securities Laws.
(d) Seller has been furnished with (i) the definitive proxy statement filed with the SEC in connection with the annual meeting of stockholders of Tristar held on February 10, 1999 and (ii) copies of Tristar's Registration Statement on Form S-8, Annual Report on Form 10-K for the year ended August 29, 1998, Quarterly Reports on Form 10-Q for the quarters ended November 28, 1998, February 27, 1999 and May 29, 1999, Form 10-Q/A for the quarter ended May 29, 1999 and Form 8-K dated March 15, 1999, filed with the SEC under the Exchange Act. Seller has been furnished with the complete financial statements of Tristar for the fiscal years ended August 1996, 1997 and 1998, and the three, six and nine months periods ended November 1998, February 1999 and May 1999, respectively. Seller has been furnished with a summary description of the terms of the Tristar Stock and the Tristar Parties have made available to Seller the opportunity to ask questions and receive answers concerning the terms and conditions of the transactions contemplated by this Agreement and to obtain any additional information which they possess or could reasonably acquire for the purpose of verifying the accuracy of information furnished to Seller as set forth herein or for the purpose of considering the transactions contemplated hereby. Tristar has offered to make available to Seller upon request at any time all exhibits filed by Tristar with the SEC as part of any of the reports filed therewith.
(e) Seller agrees that the certificates or statements related representing the Tristar Stock to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting be issued upon the exercise of the Stock Options will be imprinted with the following legend, the terms of which are specifically agreed to: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT. NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COUNSEL FOR THIS CORPORATION, IS AVAILABLE. Seller understands and agrees that appropriate stop transfer notations will be placed in the records of such New Equity InterestsTristar and with its transfer agent in respect of the Securities.
Appears in 1 contract
Samples: Merger Agreement (Tristar Corp)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” (within Principal Shareholder has had every opportunity to ask questions and receive answers from KMG concerning the meaning terms and conditions of Rule 144A under the acquisition of the Common Stock and the operations of KMG and the risks thereof, and all of such questions have been answered to the full satisfaction of such Principal Shareholder. Such Principal Shareholder has had access to such information concerning KMG and the Common Stock as it deems necessary to enable such Principal Shareholder to make an informed investment decision concerning the acquisition of the Common Stock, including access to KMG’s filings with the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;Exchange Commission available at xxx.xxx.
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s Principal Shareholder has extensive knowledge and experience in financial and matters, business matters are such that such Consenting Noteholder is and investments to be capable of evaluating the merits and risks of an unregistered investment, such Consenting Noteholder’s as an investment in KMG, and has evaluated the merits and risks of such an investment and has understood the merits and risks of such an investment. Such Principal Shareholder has independently determined the acceptability of an investment in KMG.
(c) Such Principal Shareholder acknowledges that an investment in the New Equity Interests acquired by Common Stock is suitable and consistent with such Consenting Noteholder hereunder;Principal Shareholder’s investment program and that such Principal Shareholder’s financial position enables such Principal Shareholder to bear the risks of this investment.
(d) Such Consenting Noteholder Principal Shareholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss offer and sale of the entire investment thereinCommon Stock have not been reviewed, approved or disapproved by the Securities and Exchange Commission or any other Governmental Body. Such Principal Shareholder understands that there will be substantial restrictions the Common Stock is being offered and sold to it in reliance on Section 4(a)(2) and/or Regulation D, which are exemptions from the transferability registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), as well as exemptions from the registration requirements of state securities laws and that KMG is relying in part upon the truth and accuracy of, and such Principal Shareholder’s compliance with, the representations, warranties, agreements, acknowledgments, and understandings of such New Equity Interests Principal Shareholder set forth in this Agreement in order to determine the availability of such exemptions and the eligibility of such Principal Shareholder to acquire the Common Stock in compliance with such laws. Such Principal Shareholder acknowledges that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder neither KMG nor any other Person acting on its behalf has offered to sell any of the Common Stock to such Principal Shareholder by means of any form of general solicitation or pledge such New Equity Interests advertising, including, without limitation, (i) any advertisement, article, notice, or other communication published in any interest newspaper, magazine, or similar media, or broadcast over television or radio, and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. Such Principal Shareholder has not taken any action that would result in such New Equity Interests in case the offering of emergency or otherwise;the Common Stock pursuant to this Agreement being treated as a public offering rather than a valid private offering under the law.
(e) Such Consenting Noteholder has been given Principal Shareholder is aware that the opportunity Common Stock subscribed for cannot be resold or otherwise transferred except in compliance with all federal and state securities laws. Such Principal Shareholder understands and hereby acknowledges that KMG is under no obligation to examine all documents and to ask questions ofregister the Common Stock under the Securities Act or any state securities or “blue sky” laws (“Blue Sky Laws”). Such Principal Shareholder consents that KMG may, and to receive answers fromif it desires, permit the Company Entities and their respective Representatives concerning transfer of the Company Entities, the terms and conditions Common Stock out of such Consenting NoteholderPrincipal Shareholder’s acquisition name only when such Principal Shareholder’s request for transfer is accompanied by an opinion of New Equity Interests and related matters and counsel reasonably satisfactory to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges KMG that neither the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment sale nor the proposed transfer results in a violation of the New Equity Interests acquired by such Consenting Noteholder hereunder;Securities Act or any applicable Blue Sky Laws.
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirectPrincipal Shareholder represents and warrants that the Common Stock being subscribed for is being acquired solely for Such Principal Shareholder’s own account, for any brokers’ fees investment purposes only, and not for resale, distribution, subdivision, or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interestsfractionalization thereof.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Securities Laws Matters. (a) Such Consenting Noteholder The Seller and each Stockholder has such knowledge, skill and experience in business, financial and investment matters that each is either a “qualified institutional buyer” capable of evaluating the merits and risks of an investment in Newpark Common Stock. With the assistance of their respective professional advisors, to the extent that the Seller or any Stockholder has deemed appropriate, the Seller and each Stockholder has made its own legal, Tax, accounting and financial evaluation of the merits and risks of an investment in Newpark Common Stock. The Seller and each Stockholder has considered the suitability of the Newpark Stock Consideration as an investment in light of its own circumstances and financial condition and is able to bear the risks associated with an investment in the Newpark Stock Consideration.
(within the meaning of Rule 144A under the Securities Act, a “QIB”b) or The Seller and each Stockholder is an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and .
(c) The Seller is acquiring the equity interests in Newco and GP (collectivelyNewpark Stock Consideration solely for its own beneficial account, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) purposes, and not with a view to, or for sale resale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such of the Newpark Stock Consideration in a manner that it can afford to bear would require registration under or violate the economic risk registration requirements of holding the New Equity Interests for an indefinite period of time, any state or federal securities Law. The Seller and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder each Stockholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree shares of risk of loss of the entire investment therein, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests Newpark Common Stock issued as Newpark Stock Consideration have not been registered under the Securities Act or any state securities Laws by reason of specific exemptions under the provisions thereof which depend in reliance on an exemption therefrom part upon the investment intent of the Seller and the other representations made by the Seller and the Stockholders in this Agreement. The Seller and each Stockholder understands that Buyer is relying upon the representations and agreements contained in this Section 4.25 and any supplemental information provided by the Seller or any Stockholder for the purpose of determining whether this transaction meets the requirements for such exemptions.
(d) The Seller and each Stockholder understands that the shares of Newpark Common Stock issued hereunder as Newpark Stock Consideration are “restricted securities” under Section 4(a)(2) of applicable federal securities laws and that the Securities Act and the rules of the U.S. Securities and Exchange Commission (the “SEC”) provide in substance that such shares may only be disposed pursuant to an effective registration statement under the Securities Act or an exemption therefrom, and the Seller and each Stockholder understands that Newpark has no obligation or present intention to register any of such shares. The Seller and each Stockholder further understands that any certificates or statements related to representing such shares will be imprinted with a legend in substantially the following form (and that similar restrictions will be noted in the transfer agent’s and registrar’s records for any such shares issued in book-entry accounts representing form): “THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS.”
(e) For the avoidance of doubt but subject to the Stock Escrow Agreement and the terms herein regarding the Stock Escrow Shares, the foregoing representations and warranties of the Seller set forth in subsections (a) through (d) shall not prohibit the Seller from distributing all or otherwise evidencing any New Equity Interests portion of the Newpark Stock Consideration to its Stockholders and the Buyer agrees that any such action undertaken shall bear legends restricting the transfer not be a breach of such New Equity Interestsrepresentations and warranties of the Seller.
Appears in 1 contract
Securities Laws Matters. (a) Such Consenting Noteholder The Holder represents, by accepting this Warrant, that it understands that this Warrant and any securities obtainable upon exercise of this Warrant have not been registered for sale under Federal or state securities laws and are being offered and sold to the Holder pursuant to one or more exemptions from the registration requirements of such securities laws. The Holder further represents that it is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) within the meaning of Regulation D under the Securities Act. In the absence of an effective registration of such securities or an exemption therefrom, any certificates for such securities shall bear a legend similar to the legend set forth in Section 7(c) hereof. The Holder understands that it must bear the economic risk of its investment in this Warrant and any securities obtainable upon exercise of this Warrant for an “AI”)indefinite period of time, as this Warrant and such securities have not been registered under Federal or state securities laws and therefore cannot be sold unless subsequently registered under such laws, unless as exemption from such registration is available.
(b) The Holder, by his acceptance of this Warrant, represents to the Company that it is acquiring the equity interests in Newco this Warrant and GP (collectively, the “New Equity Interests”) hereunder will acquire any securities obtainable upon exercise of this Warrant for its own account for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
thereof in violation of the Securities Act. The Holder agrees that this Warrant and any such securities will not be sold or otherwise transferred unless (bi) Such Consenting Noteholder’s financial situation a registration statement with respect to such transfer is effective under the Securities Act and any applicable state securities laws or (ii) such that it can afford sale or transfer is made pursuant to bear one or more exemptions from the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;Securities Act.
(c) Such Consenting Noteholder’s knowledge and experience All certificates representing Warrant Shares issued upon exercise hereof shall be stamped or imprinted with a legend in financial and business matters are such that such Consenting Noteholder is capable of evaluating substantially the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of the entire investment thereinTHE “SECURITIES ACT”), that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and thatOR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, accordinglyOFFERED FOR SALE, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions ofPLEDGED OR HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES UNDER THE SECURITIES ACT OR AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. ANY SUCH TRANSFER MAY ALSO BE SUBJECT TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT, and to receive answers fromAND ANY TRANSFEREE OF SUCH SECURITIES SHALL BE BOUND BY THE PROVISIONS OF SAID AGREEMENT, the Company Entities and their respective Representatives concerning the Company EntitiesA COPY OF WHICH IS ON FILE WITH, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreementsAND AVAILABLE FROM, documentsTHE SECRETARY OF NEPHROS, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity InterestsINC.
Appears in 1 contract
Samples: Warrant Agreement (Nephros Inc)
Securities Laws Matters. If such Party is a Consenting Note Holder:
(ai) Such Consenting Noteholder is either a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities Act, a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and it is acquiring the equity interests in Newco and GP securities to be acquired by it pursuant to the Transaction (collectively, the “New Equity InterestsSecurities”) hereunder for investment purposes, solely for such Consenting Noteholder’s its own account (or for and/or the account of a QIB holder for which it serves as the investment adviser or an AI) manager and not with a view to, or for sale resale in connection with, any the distribution thereofthereof and such Consenting Holder will not resell, transfer, assign or distribute the New Securities acquired by it, except in compliance with this Agreement, until this Agreement is validly terminated, and the registration requirements of the Securities Act, and applicable state securities laws or pursuant to an available exemption therefrom;
(bii) Such Consenting Noteholder’s it, or the holder for whom it acts as investment adviser or manager, is an “Accredited Investor” (as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act);
(iii) the financial situation of such Consenting Holder is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, Securities;
(iv) the knowledge and such Consenting Noteholder can afford to suffer the complete loss experience of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience Holder in financial and business matters are is such that such Consenting Noteholder it, together with its advisors, is capable of evaluating the merits and risks of such Consenting Noteholder’s the investment in the New Equity Interests acquired by such Consenting Noteholder hereundersecurities;
(dv) Such such Consenting Noteholder Holder acknowledges that no representations, express or implied, are being made with respect to the Company, the New Securities being acquired hereunder, or otherwise, other than those expressly set forth herein or in the Plan and the Disclosure Statement;
(vi) such Consenting Holder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder Securities are a speculative investment which involves that involve a high degree of risk of loss of the entire its investment therein, that there will may be substantial restrictions on the transferability of such the New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and thatSecurities and, accordingly, it may not be possible for to liquidate such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwiseHolder’s investment;
(evii) Such in making its decision to invest in the New Securities hereunder, such Consenting Noteholder Holder has relied upon independent investigations made by such Consenting Holder and, to the extent believed by such Consenting Holder to be appropriate, such Consenting Holder’s representatives, including such Consenting Holder’s own professional, tax and other advisors;
(viii) it has been advised by the Company that (A) the offer and sale of the New Securities has not been registered under the Securities Act, (B) the offering and sale of the New Securities is intended to be exempt from registration under the Securities Act pursuant to Section 4(2) of the Securities Act and Regulation D thereunder and, if issued pursuant to the Plan, section 1145 of the Bankruptcy Code, and (C) there is no established market for the New Securities and such a public market for the New Securities may not be established in the foreseeable future;
(ix) such Consenting Holder and its representatives have been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities Company, and their respective Representatives its representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this AgreementSecurities; and
(gx) Such Consenting Noteholder understands that New Equity Interests have not been registered it is familiar with Rule 144 promulgated by the Securities and Exchange Commission under the Securities Act Act, as presently in reliance on an exemption therefrom under Section 4(a)(2) of effect, and understands the resale limitations imposed thereby and by the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity InterestsAct.
Appears in 1 contract
Samples: Restructuring Support Agreement (Panolam Industries International Inc)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Each Seller Party (within on behalf of itself and its Seller Designees) acknowledges that the meaning of Rule 144A Issued Buyer Parent Shares and Issued Buyer OP Units have not been registered under the Securities ActAct or under any state securities Laws. Each Seller Party (on behalf of itself and its Seller Designees) acknowledges that the Issued Buyer Parent Shares and Issued Buyer OP Units to be acquired by such Seller Party pursuant hereto are “restricted securities” as that term is defined by Rule 144(a)(3) of the Securities Act and under applicable state securities Laws and that, a “QIB”) pursuant to such Laws, such Seller Party and its Seller Designees must hold such Issued Buyer Parent Shares and Issued Buyer OP Units indefinitely unless they are registered with the SEC and qualified by state authorities, or an “accredited investor” (exemption from such registration and qualification requirements is available and, other than as defined set forth in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectivelyRegistration Rights Agreement, the “New Equity Interests”) hereunder Buyer Parties have no obligation to register or qualify such shares for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;resale.
(b) Such Consenting Noteholder’s financial situation is such Each Seller Party (on behalf of itself and its Seller Designees) (i) acknowledges that it can afford is acquiring the Issued Buyer Parent Shares and the Issued Buyer OP Units pursuant to bear an exemption from registration under the economic risk Securities Act solely for investment with no present intention to distribute any of holding the New Equity Interests for an indefinite period Issued Buyer Parent Shares and Issued Buyer OP Units to any Person in violation of timeapplicable securities laws, (ii) will not sell or otherwise dispose of any of the Issued Buyer Parent Shares and Issued Buyer OP Units, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities Laws, (iii) has such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such and in investments of this type that such Consenting Noteholder it is capable of evaluating the merits and risks of such Consenting Noteholder’s its investment in the New Equity Interests Issued Buyer Parent Shares and Issued Buyer OP Units and of making an informed investment decision, (iv) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), and (v) (x) has been furnished with or has had full access to all the information that it considers necessary or appropriate to make an informed investment decision with respect to the Issued Buyer Parent Shares and Issued Buyer OP Units, (y) has had an opportunity to discuss with management of the Buyer Parties the intended business and financial affairs of the Buyer Parties and to obtain information (to the extent the Buyer Parties possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to it or to which it had access and (z) can bear the economic risk of (A) an investment in the Issued Buyer Parent Shares and Issued Buyer OP Units indefinitely and (B) a total loss in respect of such investment.
(c) Each Seller Party (on behalf of itself and its Seller Designees) acknowledges that the Issued Buyer Parent Shares and Issued Buyer OP Units to be acquired by such Consenting Noteholder hereunder;Seller Party pursuant hereto, if certificated, shall bear the following legends (in addition to any legend required under applicable state securities Laws): “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. SAID SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR SUCH APPLICABLE STATE SECURITIES LAWS.”
(d) Such Consenting Noteholder understands that In addition, each Seller Party (on behalf of itself and its Seller Designees) acknowledges that, for so long as such Issued Buyer Parent Shares and the New Equity Interests Issued Buyer OP Units are subject to the restrictions on transfer set forth in the Stockholders Agreement, the Issued Buyer Parent Shares and Issued Buyer OP Units to be acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss of Seller Party and its Seller Designees pursuant hereto, if certificated, shall bear the entire investment thereinfollowing legends: “THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A STOCKHOLDERS AGREEMENT. THE CORPORATION WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF SUCH STOCKHOLDERS AGREEMENT, that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and thatAS IN EFFECT ON THE DATE OF MAILING, accordinglyWITHOUT CHARGE, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;PROMPTLY FOLLOWING RECEIPT OF A WRITTEN REQUEST THEREFOR.”
(e) Such Consenting Noteholder has been given the opportunity to examine all documents In addition, each Seller Party (on behalf of itself and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder its Seller Designees) acknowledges that the Company Entities have made available Buyer Parent Common Stock is subject to such Consenting Noteholder all agreements, documents, records restrictions on ownership and books that such Consenting Noteholder has requested relating to an investment transfer set forth in the New Equity Interests Buyer Parent Charter, and the Issued Buyer Parent Shares to be acquired by such Consenting Noteholder hereunder;
Seller Party and its Seller Designees pursuant hereto, if certificated, shall be the following legends, or such other legend as may be required from time to time by the Buyer Parent Charter: “THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER, ON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT OF THE INFORMATION REQUIRED BY SECTION 2-211(B) OF THE CORPORATIONS AND ASSOCIATIONS ARTICLE OF THE ANNOTATED CODE OF MARYLAND WITH RESPECT TO THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS AND OTHER DISTRIBUTIONS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE CORPORATION HAS AUTHORITY TO ISSUE AND, IF THE CORPORATION IS AUTHORIZED TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, (fI) Such Consenting Noteholder has not employed any investment bankerTHE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT SET, broker or finder or incurred any actual or potential liability or obligationAND (II) THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET SUCH RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES. THE FOREGOING SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE CHARTER, whether direct or indirectA COPY OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this AgreementAS AMENDED (THE “CODE”). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE CORPORATION’S CHARTER, (I) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION’S COMMON STOCK IN EXCESS OF 9.8% (IN VALUE OR NUMBER OF SHARES) OF THE OUTSTANDING SHARES OF COMMON STOCK OF THE CORPORATION UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); and
(gII) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK OF THE CORPORATION IN EXCESS OF 9.8% OF THE VALUE OF THE TOTAL OUTSTANDING SHARES OF CAPITAL STOCK OF THE CORPORATION, UNLESS SUCH PERSON IS AN EXCEPTED HOLDER (IN WHICH CASE THE EXCEPTED HOLDER LIMIT SHALL BE APPLICABLE); (III) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity InterestsNO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN CAPITAL STOCK THAT WOULD RESULT IN THE CORPORATION BEING “CLOSELY HELD” UNDER SECTION 856(H) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REIT; AND (IV) NO PERSON MAY TRANSFER SHARES OF CAPITAL STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK WHICH CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF CAPITAL STOCK IN EXCESS OR IN VIOLATION OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP SET FORTH IN (I) THROUGH (III) ABOVE ARE VIOLATED, THE SHARES OF CAPITAL STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO A TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN ADDITION, THE CORPORATION MAY TAKE OTHER ACTIONS, INCLUDING REDEEMING SHARES UPON THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE AND ABSOLUTE DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CHARTER OF THE CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF CAPITAL STOCK OF THE CORPORATION ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE.”
Appears in 1 contract
Samples: Asset Purchase Agreement (Hudson Pacific Properties, Inc.)
Securities Laws Matters. (a) Such Consenting Noteholder is either As soon as practicable after the date hereof, the Company and Hold Co shall use their commercially reasonable efforts to arrange for a “qualified institutional buyer” purchaser representative (within the meaning of Rule 144A as contemplated by Regulation D under the Securities Act, a ) reasonably satisfactory to Parent (the “QIBPurchaser Representative”) or an “accredited investor” (as defined in Rule 501(a) under the Securities Act, an “AI”), and is acquiring the equity interests in Newco and GP (collectively, the “New Equity Interests”) hereunder for investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;
(b) Such Consenting Noteholder’s financial situation is such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder is capable of evaluating the merits and risks of such Consenting Noteholder’s investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(d) Such Consenting Noteholder understands that the New Equity Interests acquired by such Consenting Noteholder hereunder are a speculative investment which involves a high degree of risk of loss represent each stockholder of the entire investment therein, Company and prospective holder of membership units of Hold Co that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and that, accordingly, it may not be possible for such Consenting Noteholder to sell or pledge such New Equity Interests or any interest in such New Equity Interests in case of emergency or otherwise;
(e) Such Consenting Noteholder has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company Entities and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to is an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees Unaccredited Investor in connection with the transactions contemplated by the Hold Co Merger Agreement and this Agreement; and
. The Company and Hold Co shall use their commercially reasonable efforts to obtain a written agreement in a form attached hereto as Exhibit E-1 (ga “Stockholders Representation Agreement”) Such Consenting Noteholder understands from each Company Stockholder, in which each such stockholder represents in writing that New Equity Interests have not been registered such stockholder either (i) is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act, or (ii) has appointed the Purchaser Representative as contemplated by Rule 501 of Regulation D promulgated under the Securities Act by executing and delivering an agreement in reliance a form attached hereto as Exhibit E-2 (a “Purchaser Representative Agreement”). The Company must obtain a Purchaser Representative Agreement from each Unaccredited Investor prior to 20 Business Days after the Solicitation Date (the “Purchaser Representative Condition”) in order to fulfill the Purchaser Representative Condition.
(b) As soon as practicable after the date hereof, the parties shall prepare, and, within seven Business Days after the date hereof, deliver to all of the holders of Company Capital Stock and prospective holders of membership units of Hold Co, the Stockholders Representation Agreement, the Purchaser Representative Agreement and an information statement relating to the Hold Co Merger Agreement, this Agreement and the transactions contemplated hereby and thereby (the “Private Placement Information Statement”) (the date of such distribution being referred to herein as the “Solicitation Date”). Each of Hold Co, the Company, Parent and Merger Sub shall use commercially reasonable efforts to cause the Private Placement Information Statement to comply with all requirements of applicable federal and state securities laws including the requirements of Rules 502 and 506 of Regulation D promulgated under the Securities Act. The Private Placement Information Statement shall constitute a disclosure document for the offer and issuance of (i) the membership units of Hold Co to be issued in the Hold Co Merger and (ii) the shares of Parent Common Stock to be issued in accordance with this Agreement. Whenever any event occurs that is required to be set forth in an amendment or supplement to the Private Placement Information Statement, Hold Co, the Company, Parent and Merger Sub shall cooperate in delivering any such amendment or supplement to all the holders of Company Capital Stock and prospective holders of membership units of Hold Co. Anything to the contrary contained herein notwithstanding, (x) the Company and Hold Co shall not include in the Private Placement Information Statement any information with respect to Parent, Merger Sub or their respective Affiliates or associates, the form and content of which information shall not have been approved by Parent prior to such inclusion; provided, however, that Parent shall not withhold approval of any information required to be included by federal or state law, and (y) Parent shall not include in the Private Placement Information Statement any information with respect to Hold Co, the Company or their respective Affiliates or associates, the form and content of which information shall not have been approved by the Company prior to such inclusion; provided, however, that the Company shall not withhold approval of any information required to be included by federal or state law. The Private Placement Information Statement shall include the unqualified and unanimous recommendation of Hold Co’s board of directors and the Company’s board of directors (together with Hold Co’s board of directors, the “Company Board”) in favor of adoption of the Hold Co Merger Agreement and this Agreement and approval of the Merger and the Hold Co Merger and the unqualified and unanimous recommendation of the Company Board that the terms and conditions of the Hold Co Merger, the Drop Down, the Distribution, the Merger, the Drop Down Agreement, the Hold Co Merger Agreement and this Agreement are fair, advisable and in the best interests of the Company and its stockholders, Hold Co and the holders of its membership units (the “Company Board Recommendation”). The Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Parent, and no resolution by the Company Board or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Parent shall be adopted or proposed.
(c) Each of Parent (for itself and Merger Sub), Hold Co and the Company shall provide promptly to the other such information concerning its business and financial statements and affairs as in the reasonable judgment of the providing party or its counsel, may be required or appropriate for inclusion in the Private Placement Information Statement or in any amendments or supplements thereto, and to cause its counsel, auditors and other representatives to cooperate with the other party’s counsel, auditors and other representatives in the preparation of the Private Placement Information Statement.
(d) If the Purchaser Representative Condition has not been satisfied prior to 20 Business Days after the Solicitation Date, then the Company shall, on an exemption therefrom the 21st Business Day following the Solicitation Date or such earlier date as may be agreed by Parent and the Company, (i) cause Hold Co to be converted into a Delaware corporation pursuant to the applicable provisions of the DGCL and thereafter (ii) cause the Hold Co Merger to be consummated without any vote of the Company Stockholders pursuant to section 251(g) of the DGCL upon satisfaction of the conditions to closing of the Hold Co Merger set forth in the Hold Co Merger Agreement. From and after any such conversion, all references to Hold Co, its members, membership units and board of directors in this Agreement shall be deemed to refer to the converted corporation, its stockholders, corresponding capital stock and board of directors, respectively.
(e) Following any failure of the Purchaser Representative Condition to be satisfied prior to 20 Business Days after the Solicitation Date, Parent, Merger Sub, Hold Co and the Company shall use commercially reasonable efforts to cause the issuance of Parent Common Stock to Hold Co in the Merger to be exempt from the registration requirements of the Securities Act by reason of Rule 506 of Regulation D promulgated under Section 4(a)(24(2) of the Securities Act and that any certificates or statements related otherwise to book-entry accounts representing or otherwise evidencing any New Equity Interests comply with all requirements of applicable federal and state securities laws.
(f) Parent shall bear legends restricting prepare and submit to NASDAQ a notification of listing of additional shares covering the transfer shares of Parent Common Stock to be issued in the Merger and shall use commercially reasonable efforts to obtain, prior to the Effective Time, approval for the quotation of such New Equity InterestsParent Common Stock, subject to official notice of issuance to NASDAQ.
(g) Prior to the Effective Time, Parent shall use commercially reasonable efforts to obtain all regulatory approvals needed to ensure that the Parent Common Stock to be issued in the Merger (to the extent required) is registered or qualified or exempt from registration or qualification under the securities law of every state of the United States and in every foreign jurisdiction in which any registered holder of Company Capital Stock has an address of record on the record date for determining the stockholders entitled to notice of and to vote on the Merger; provided, however, that Parent shall not be required: (i) to qualify to do business as a foreign corporation in any jurisdiction in which it is not now qualified; or (ii) to file a general consent to service of process in any jurisdiction.
(h) The Company and Hold Co shall take all other action reasonably necessary or advisable in connection with seeking the consent of the Company Stockholders (other than those delivering Written Consents) and Hold Co’s members (other than those delivering Written Consents) required to effect the transactions contemplated by the Hold Co Merger Agreement, this Agreement and the Drop Down Agreement.
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Samples: Merger Agreement (First Solar, Inc.)
Securities Laws Matters. (a) Such Consenting Noteholder is either a “qualified institutional buyer” Seller has no present intention of distributing any portion of the shares of Parent Common Stock received pursuant to this Agreement (within or any interest therein) in violation of applicable securities laws. Seller understands that the meaning shares of Rule 144A Parent Common Stock issued to Seller will not be registered under the Securities Act, Act at the time of such issuance by reason of a “QIB”) or an “accredited investor” (as defined in Rule 501(a) under specific exemption from the registration provisions of the Securities ActAct which depends upon, an “AI”), and is acquiring the equity interests in Newco and GP (collectivelyamong other things, the “New Equity Interests”) hereunder for bona fide nature of the Seller’s investment for such Consenting Noteholder’s own account (or for the account of a QIB or an AI) and not with a view to, or for sale in connection with, any distribution thereof;intent as expressed herein.
(b) Such Consenting Noteholder’s financial situation is Seller has such that it can afford to bear the economic risk of holding the New Equity Interests for an indefinite period of time, and such Consenting Noteholder can afford to suffer the complete loss of such Consenting Noteholder’s investment in such New Equity Interests;
(c) Such Consenting Noteholder’s knowledge and experience in financial and business matters are such that such Consenting Noteholder Seller is capable of evaluating the merits and risks of such Consenting Noteholder’s an investment in Parent Common Stock and protecting Seller’s own interests in connection with such investment.
(c) Seller acknowledges that he is sufficiently aware of the New Equity Interests Parent’s business affairs and financial condition and has acquired by such Consenting Noteholder hereunder;sufficient information about Parent to reach an informed and knowledgeable investment decision with respect to acquiring shares of Parent Common Stock pursuant to this Agreement. Seller has relied upon, and is making his investment decision upon, the information made available to Seller and other information publicly available about Parent.
(d) Such Consenting Noteholder understands that Seller is not acquiring the New Equity Interests acquired by such Consenting Noteholder hereunder shares of Parent Common Stock as a result of any general solicitation or general advertising (as those terms are a speculative investment which involves a high degree of risk of loss of used in Regulation D under the entire investment thereinSecurities Act), that there will be substantial restrictions on the transferability of such New Equity Interests and that following the Closing there will be no public market for such New Equity Interests and thatincluding advertisements, accordinglyarticles, it may not be possible for such Consenting Noteholder to sell notices or pledge such New Equity Interests other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or any interest in such New Equity Interests in case of emergency seminar or otherwise;meeting whose attendees have been invited by general solicitation or general advertising.
(e) Such Consenting Noteholder has been given With respect to the opportunity to examine all documents tax and to ask questions ofother economic considerations involved in acquiring the shares of Parent Common Stock, Seller is not relying on Parent or Buyer, and Seller has carefully considered and has, to receive answers fromthe extent Seller believes such discussion necessary, discussed with Seller’s professional legal, tax, accounting and financial advisors the Company Entities implications of acquiring the shares of Parent Common Stock for the Seller’s particular tax, financial and their respective Representatives concerning the Company Entities, the terms and conditions of such Consenting Noteholder’s acquisition of New Equity Interests and related matters and to obtain all additional information which such Consenting Noteholder deems necessary. Such Consenting Noteholder acknowledges that the Company Entities have made available to such Consenting Noteholder all agreements, documents, records and books that such Consenting Noteholder has requested relating to an investment in the New Equity Interests acquired by such Consenting Noteholder hereunder;
(f) Such Consenting Noteholder has not employed any investment banker, broker or finder or incurred any actual or potential liability or obligation, whether direct or indirect, for any brokers’ fees or finders’ fees in connection with the transactions contemplated by this Agreement; and
(g) Such Consenting Noteholder understands that New Equity Interests have not been registered under the Securities Act in reliance on an exemption therefrom under Section 4(a)(2) of the Securities Act and that any certificates or statements related to book-entry accounts representing or otherwise evidencing any New Equity Interests shall bear legends restricting the transfer of such New Equity Interestsaccounting situation.
Appears in 1 contract
