Common use of Sophistication, etc Clause in Contracts

Sophistication, etc. (a) Seller and its advisors, if any, have been afforded an opportunity to ask questions of, and have received answers from, Purchaser regarding its business and the Consideration Shares and the transactions contemplated hereby; provided, however, that neither such inquiries nor any other due diligence investigations conducted by Seller or its advisors or representatives, nor any other statement made by Seller in this Section 3.1.9, shall modify, amend or affect the representations and warranties made by Purchaser under this Agreement or Seller's right to rely thereon. (b) Seller has, on account of its experience with investments and by reason of its business and financial experience, such knowledge, sophistication and experience in financial and business matters and in making investment decisions of the type contemplated hereby that it is capable of (i) evaluating the merits and risks of an investment in the Consideration Shares and making an informed investment decision, (ii) protecting its own interests (financially or otherwise), and (iii) bearing the economic risk of such investment for an indefinite period of time. (c) Seller is purchasing the Consideration Shares for its own account, and Seller understands and acknowledges that the offer and sale of the Consideration Shares as contemplated hereby have not been registered under the Securities Act, any state "Blue Sky" law, or any applicable foreign law or regulation, and that any subsequent transfer or offer to transfer by Seller or any representative thereof of the Consideration Shares are subject to registration requirements (and that Purchaser is under no obligation to so register such shares) or other restrictions arising under such laws and regulations in the absence of an available exemption therefrom. (d) Seller acknowledges that the information that is required under Rule 144 promulgated by the Securities Act is not presently publicly available and that Purchaser has no obligation to so make such information available as contemplated by such rule. (e) The Consideration Shares to be acquired by Seller are being acquired for investment. Seller has no present intention of selling, granting any participation in or otherwise distributing the Consideration Shares in violation of applicable Laws. (f) Each holder of equity interest in Seller is an accredited investor as defined by the Securities Act. (g) Seller has received and reviewed all the information that Seller has been provided, all the material information that Seller has requested with respect to Purchaser. Seller has had an opportunity to ask questions and receive answers regarding Purchaser and its business and to the extent requested, received satisfactory answers from the management of Purchaser regarding the terms and conditions of the issuance and delivery of the Consideration Shares contemplated hereby and the business, affairs, prospects, management, properties, assets, results of operation, and condition (financial or other) of Purchaser, including, without limitation, those matters set forth herein. Seller understands that the level of disclosure provided by Purchaser is less than that which would be provided in connection with a securities offering registered under the securities laws of certain jurisdictions in reliance on the sophistication and investment experience of Seller. (h) Suitability of Investment. (i) Seller understands that there is no current active market for the Consideration Shares or the underlying Common Stock and the underlying shares of Common Stock are subject to the vagaries of the financial markets; Purchaser makes no representation as to the future value of such shares or if any market is or will be available for trading such shares; (ii) Seller has not and will not, directly or indirectly, offer, sell, transfer, assign, exchange or otherwise dispose of all or any part of the Consideration Shares except in accordance with applicable Laws, and Seller will not be an "underwriter" as defined by the Securities Act; (iii) Neither Seller nor any of its Affiliates has engaged in any activity (including any general advertising or media advertising) relating to the Consideration Shares that would be deemed a "general solicitation" within the meaning of Rule 501 of Regulation D of the Securities Act; and (iv) Seller acknowledges that it is able to assess the reasonableness of an investment for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Consideration Shares. Such has not been organized solely for the purpose of acquiring the Consideration Shares. Seller acknowledges that any investment in the Consideration Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Consideration Shares for an indefinite period of time and to suffer a complete loss of its investment. (i) Seller has sought and obtained such investment, accounting, legal and tax advice as it has considered necessary or desirable to make an informed decision to purchase the Consideration Shares and enter into this Agreement and is not relying on the accountants, legal counsel, financial advisors or other representatives of Purchaser for any such advice or for any other purpose. (j) Seller is relying upon its own due diligence investigation of Purchaser and its business, operations and financial condition in reaching its decision to acquire the Consideration Shares.

Sophistication, etc. (a) Seller and its advisors, if any, have been afforded an opportunity to ask questions of, and have received answers from, Purchaser regarding its business and the Consideration Shares and the transactions contemplated hereby; provided, however, that neither such inquiries nor any other due diligence investigations conducted by Seller or its advisors or representatives, nor any other statement made by Seller in this Section 3.1.9, . shall modify, amend or affect the representations and warranties made by Purchaser under this Agreement or Seller's ’s right to rely thereon. (b) Seller has, on account of its experience with investments and by reason of its business and financial experience, such knowledge, sophistication and experience in financial and business matters and in making investment decisions of the type contemplated hereby that it is capable of (i) evaluating the merits and risks of an investment in the Consideration Shares and making an informed investment decision, (ii) protecting its own interests (financially or otherwise), and (iii) bearing the economic risk of such investment for an indefinite period of time. (c) Seller is purchasing the Consideration Shares for its own account, and Seller understands and acknowledges that the offer and sale of the Consideration Shares as contemplated hereby have not been registered under the Securities Act, any state "“Blue Sky" ” law, or any applicable foreign law or regulation, and that any subsequent transfer or offer to transfer by Seller or any representative thereof of the Consideration Shares are subject to registration requirements (and that Purchaser is under no obligation to so register such shares) or other restrictions arising under such laws and regulations in the absence of an available exemption therefrom. (d) Seller acknowledges that the information that is required under Rule 144 promulgated by the Securities Act is not presently publicly available and that Purchaser has no obligation to so make such information available as contemplated by such rule. (e) The Consideration Shares to be acquired by Seller are being acquired for investment. Seller has no present intention of selling, granting any participation in or otherwise distributing the Consideration Shares in violation of applicable Laws. (f) Each holder of equity interest in Seller is an accredited investor as defined by the Securities Act. (g) Seller has received and reviewed all the information that Seller has been provided, all the material information that Seller has requested with respect to Purchaser. Seller has had an opportunity to ask questions and receive answers regarding Purchaser and its business and to the extent requested, received satisfactory answers from the management of Purchaser regarding the terms and conditions of the issuance and delivery of the Consideration Shares contemplated hereby and the business, affairs, prospects, management, properties, assets, results of operation, and condition (financial or other) of Purchaser, including, without limitation, those matters set forth herein. Seller understands that the level of disclosure provided by Purchaser is less than that which would be provided in connection with a securities offering registered under the securities laws of certain jurisdictions in reliance on the sophistication and investment experience of Seller. (h) Suitability of Investment. (i) Seller understands that there is no current active market for the Consideration Shares or the underlying Common Stock and the underlying shares of Common Stock are subject to the vagaries of the financial markets; Purchaser makes no representation as to the future value of such shares or if any market is or will be available for trading such shares; (ii) Seller has not and will not, directly or indirectly, offer, sell, transfer, assign, exchange or otherwise dispose of all or any part of the Consideration Shares except in accordance with applicable Laws, and Seller will not be an "“underwriter" ” as defined by the Securities Act; (iii) Neither Seller nor any of its Affiliates has engaged in any activity (including any general advertising or media advertising) relating to the Consideration Shares that would be deemed a "“general solicitation" ” within the meaning of Rule 501 of Regulation D of the Securities Act; and (iv) Seller acknowledges that it is able to assess the reasonableness of an investment for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Consideration Shares. Such has not been organized solely for the purpose of acquiring the Consideration Shares. Seller acknowledges that any investment in the Consideration Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Consideration Shares for an indefinite period of time and to suffer a complete loss of its investment. (i) Seller has sought and obtained such investment, accounting, legal and tax advice as it has considered necessary or desirable to make an informed decision to purchase the Consideration Shares and enter into this Agreement and is not relying on the accountants, legal counsel, financial advisors or other representatives of Purchaser for any such advice or for any other purpose. (j) Seller is relying upon its own due diligence investigation of Purchaser and its business, operations and financial condition in reaching its decision to acquire the Consideration Shares.

Sophistication, etc. (a) Seller By reason of his or her business and its advisorsfinancial experience (including, without limitation, his involvement in the day-to-day conduct of the business of Elite), and the business and financial experience of those, if any, have been afforded an opportunity retained by such Stockholder to ask questions ofadvise him with respect to the investment in the securities of Mattress Firm being acquired hereunder and the due diligence performed by such Stockholder, and have received answers from, Purchaser regarding its business and the Consideration Shares and the transactions contemplated hereby; provided, however, that neither such inquiries nor any other due diligence investigations conducted by Seller or its advisors or representatives, nor any other statement made by Seller in this Section 3.1.9, shall modify, amend or affect the representations and warranties made by Purchaser under this Agreement or Seller's right to rely thereon. (b) Seller has, on account of its experience with investments and by reason of its business and financial experiencehis behalf, such knowledgeStockholder, sophistication together with such advisors, has such knowledge and experience in financial and business matters and in making investment decisions of the type contemplated hereby that it is so as to be capable of (i) evaluating the merits and risks of an investment in the Consideration Shares Mattress Firm and making an informed investment decision, (ii) protecting its own interests (financially or otherwise), and (iii) bearing the economic risk of such investment for an indefinite period of timedecision with respect thereto. (cb) Seller is purchasing the Consideration Shares for its own account, and Seller understands and Such Stockholder acknowledges that the offer securities of Mattress Firm to be acquired hereunder will be subject to the Stockholders’ Agreement and sale of the Consideration Shares as contemplated hereby Registration Agreement and have not been registered under the Securities Act, any state "Blue Sky" law, Act or any applicable foreign law or regulationstate securities Laws and, therefore, cannot be sold unless permitted under the Stockholders’ Agreement and that any subsequent transfer or offer to transfer by Seller or any representative thereof of the Consideration Shares are subject to registration requirements (Registration Agreement and that Purchaser is either registered under no obligation to so register such shares) or other restrictions arising under such laws and regulations in the absence of an available exemption therefrom. (d) Seller acknowledges that the information that is required under Rule 144 promulgated by the Securities Act and such applicable state securities Laws or an exemption from such registration is available. Such Stockholder is acquiring such securities for his own account and not presently publicly available and that Purchaser has no obligation with a view to so make such information available as contemplated by such rule. (etheir distribution within the meaning of Section 2(11) The Consideration Shares to be acquired by Seller are being acquired for investment. Seller has no present intention of selling, granting any participation in or otherwise distributing the Consideration Shares in violation of applicable Laws. (f) Each holder of equity interest in Seller is an accredited investor as defined by the Securities Act. (gc) Seller has received and reviewed all the information Such Stockholder understands that Seller has been provided, all the material information that Seller has requested with respect to Purchaser. Seller has had an opportunity to ask questions and receive answers regarding Purchaser and its business and to the extent requested, received satisfactory answers from the management of Purchaser regarding the terms and conditions of the issuance and delivery of the Consideration Shares contemplated hereby and the business, affairs, prospects, management, properties, assets, results of operationhe must, and condition (financial or other) of Purchaser, including, without limitation, those matters set forth herein. Seller understands that the level of disclosure provided by Purchaser is less than that which would be provided in connection with a securities offering registered under the securities laws of certain jurisdictions in reliance on the sophistication and investment experience of Seller. (h) Suitability of Investment. (i) Seller understands that there is no current active market for the Consideration Shares or the underlying Common Stock and the underlying shares of Common Stock are subject to the vagaries of the financial markets; Purchaser makes no representation as to the future value of such shares or if any market is or will be available for trading such shares; (ii) Seller has not and will not, directly or indirectly, offer, sell, transfer, assign, exchange or otherwise dispose of all or any part of the Consideration Shares except in accordance with applicable Laws, and Seller will not be an "underwriter" as defined by the Securities Act; (iii) Neither Seller nor any of its Affiliates has engaged in any activity (including any general advertising or media advertising) relating to the Consideration Shares that would be deemed a "general solicitation" within the meaning of Rule 501 of Regulation D of the Securities Act; and (iv) Seller acknowledges that it is able to assess the reasonableness of an investment for itselfto, can bear the economic risk of its investment, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Consideration Sharessecurities of Mattress Firm to be acquired hereunder indefinitely because such securities may not be sold, hypothecated or otherwise disposed of unless permitted by the Stockholders’ Agreement and the Registration Agreement and either registered under the Securities Act and applicable state securities Laws or an exemption from such registration is available. Such has not been organized solely for the purpose of acquiring the Consideration Shares. Seller acknowledges that any Stockholder understands that: (i) his investment in the Consideration Shares securities of Mattress Firm to be acquired hereunder involves a high substantial degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Consideration Shares for an indefinite period risk of time and to suffer a complete loss of its his entire investment (which he can afford); (ii) there is no assurance of any income from such investment; and (iii) he is relying on the advice, if any, received from his personal tax advisor with respect to the tax aspects of such investment. (id) Seller Such Stockholder has sought received and obtained read carefully the Confidential Private Offering Memorandum (as amended, revised or supplemented prior to the Closing) delivered by Mattress Firm and Newco to such investmentStockholder and has consulted with, accountingor has had the opportunity to consult with, his own legal and tax advice as it has considered necessary or desirable to make an informed decision to purchase the Consideration Shares and enter into counsel in connection with this Agreement and is not relying on the accountants, legal counsel, financial advisors or other representatives of Purchaser for any such advice or for any other purposetransactions contemplated by this Agreement. (j) Seller is relying upon its own due diligence investigation of Purchaser and its business, operations and financial condition in reaching its decision to acquire the Consideration Shares.