Securities Representations. (1) Owner and each of its partners (in the event of a distribution of the Partnership Units by Owner to its Partners) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement. (2) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares. (3) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares. (4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws. (5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount.
Appears in 2 contracts
Sources: Contribution and Exchange Agreement (Highwoods Forsyth L P), Contribution and Exchange Agreement (Highwoods Properties Inc)
Securities Representations. (A) Buyer understands that the Purchase Securities are not registered under the Securities Act, or applicable state securities laws, and are being issued pursuant to exemptions from such laws, and that each Seller’s and the Company’s reliance upon such exemptions is predicated in part on the Buyer’s representations contained herein. Buyer acknowledges that Sellers and the Company are relying in part upon Buyer’s representations and warranties contained herein for the purpose of qualifying the issuance of the Purchase Securities for applicable exemptions from registration or qualification pursuant to federal or state securities laws, rules and regulations.
(B) Buyer realizes that (1) Owner the Purchase Securities have not been registered under the Securities Act, are characterized under the Securities Act as “restricted securities” and, therefore, cannot be sold or transferred unless subsequently registered under the Securities Act or an exemption from such registration is available, and each of (2) there is presently no public market for the Purchase Securities and Buyer would most likely not be able to liquidate its partners (investment in the event of a distribution of an emergency or to pledge the Partnership Units by Owner to its PartnersPurchase Securities as collateral security for loans.
(C) will acquire Buyer is acquiring the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") Purchase Securities for its or his own account accounts and not with a view to or for sale in connection with any public distributions distribution or resale thereof within the meaning of the Securities Act of 1933and does not presently have any contract, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, agreement or arrangement with any Person to sell or transfer such Underlying Shares may be sold pursuant to the terms of the Registration Rights AgreementSecurities.
(2D) Owner Buyer, either alone or with the assistance of professional advisors, is a sophisticated investor, can fend for itself in the transactions contemplated by this Agreement, and its partners believe they have sufficient has such knowledge and experience in financial and business matters to enable them to that Buyer can evaluate the merits and risks of the prospective investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying SharesPurchase Securities.
(3E) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance Except for the representations specifically set forth in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods this Agreement by Sellers and the REIT Company, Buyer Parties acknowledge that no officer or other representative of Sellers or the Company, nor any other person or entity has made any representations of any kind or nature to induce Buyer Parties to enter into this Agreement or any person or persons acting other Transaction Document and that Buyer Parties are relying solely on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount.
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement (Red White & Bloom Brands Inc.)
Securities Representations. Each Party severally, and not jointly, represents that:
(1a) Owner and each of its partners (in The Units that are allocable to such Party are being acquired for the event of a distribution of the Partnership Units by Owner to its Partners) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his Party’s own account and not with a view to the public distribution of any of the Units. The Party will not sell, hypothecate or for otherwise transfer any of the Units except in accordance with applicable federal and state securities Laws.
(b) Each Party understands that the offering and the sale in connection with any public distributions thereof within of Units pursuant to this Agreement are intended to be exempt from registration under the meaning Securities Act by virtue of Section 4(2) of the Securities Act of 1933, as amended (and Regulation D under the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2c) Owner Each Party understands that: (i) the Units have not been registered or qualified under the Securities Act or the securities Laws of the State of Delaware or any other state, and neither the Securities and Exchange Commission nor any state or other regulatory authority has made any recommendation or finding concerning the value of the Units; (ii) there is no assurance that the Party will be able to sell the Units at a purchase price that Party deems reasonable; (iii) the Units may be offered, sold or otherwise transferred by the Party only if (a) the transaction is registered and qualified under the applicable provisions of federal and state securities laws or if exemptions from such registration and qualification are available; and (b) all conditions applicable to such offer, sale or transfer set forth in LLC Agreement are satisfied; (iv) the satisfaction of these securities registration exemptions is the Party’s responsibility; and (v) neither the Company nor the other Party is under any obligation to assist the Party in satisfying these exemptions, and the Company does not intend to register any subsequent transaction by the Party under applicable federal and state securities Laws.
(d) No oral or written representations or recommendations have been made, and no oral or written information has been furnished, to the Party regarding the advisability of acquiring the Units. The Party (including its partners believe they have professional advisors, if any) has had sufficient opportunity to ask questions and receive answers concerning the terms and conditions of the issuance of the Units.
(e) Each Party has such knowledge and experience in financial and business matters to enable them to evaluate that the Party is capable of evaluating the merits and risks of an investment in the Partnership Units Company and the Underlying Sharesof making an informed investment decision. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof Each Party is an "“accredited investor," ” as such term is defined in Regulation D promulgated under Rule 501 of the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount.
Appears in 1 contract
Securities Representations. Purchaser hereby represents and warrants that:
(1a) Owner Purchaser acknowledges and each agrees that the Shares are characterized as “restricted securities” under applicable U.S. federal and state securities laws, including Rule 144 promulgated by the Securities and Exchange Commission (“SEC”) under the Securities Act of its partners 1933, as amended (in the event of a distribution “Securities Act”), and that pursuant to these laws, Purchaser must hold the Shares indefinitely unless subsequently registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Neither the Company nor any other person is under any obligation to register the Shares under the Securities Act or otherwise.
(b) Purchaser understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Partnership Units by Owner Shares. It is further understood that any stock certificates to its Partners) will acquire the Partnership Units and the common stock of the REIT be issued pursuant to Section 8.6A the terms of this Agreement may bear one or more legends restricting the transfer of the Partnership Agreement Shares or as otherwise required by applicable Law.
(c) Purchaser is acquiring the "Underlying Shares" or "Shares") Shares for its or his Purchaser’s own account for investment only and not with a view towards the public sale or distribution thereof and not with a view to or for sale in connection with any public distributions thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreementdistribution thereof.
(2d) Except as set forth in this Agreement, no representations or warranties have been made to Purchaser by the Company or Owner or any Affiliate thereof. Purchaser has been solely responsible for Purchaser’s own due diligence investigation of the Company and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate Purchaser’s analysis of the merits and risks of the investment in made pursuant to this Agreement, and is not relying on anyone else’s analysis or investigation of the Partnership Units Company, its business or the merits and risks of the Underlying Shares. Owner and each of its partners have Purchaser has obtained, to the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished withextent Purchaser deems necessary, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend Purchaser’s own professional advice with respect to the restrictions on transfer under risks inherent in the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined investment in Regulation D promulgated under the Securities Act. None Shares, the condition of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by Company and the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as suitability of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to investment in the Owner's actual knowledge as Shares in light of the date of Closing; provided, if any such representations or warranties are not true, accurate Company’s financial condition and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountinvestment needs.
Appears in 1 contract
Securities Representations. (1a) Owner and each of its partners (Seller is an “accredited investor” as defined in the event of a distribution of the Partnership Units by Owner to its PartnersRule 501(a) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof within the meaning of under the Securities Act of 1933, as amended (the "“Securities Act")”, except that, upon exchange and each member of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights AgreementSeller is an accredited investor.
(2b) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate Seller understands that the merits and risks of investment in Shares, the Partnership Units Warrant and the Underlying Shares. Owner Exercise Shares are “restricted securities” and each that the sale of its partners have the ability to bear the economic risk of acquiring the Partnership Units Shares and the Underlying Shares.
(3) Owner and each of its partners have Warrant to Seller has not been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities lawsAct.
(5c) Owner Seller is acquiring the Shares and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None Warrant for its own account for investment only, has no present intention of distributing the Shares or the Warrant and has no arrangement or understanding with any other person regarding the distribution of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling the Warrant (this representation and warranty not limiting Seller’s right to sell the Shares pursuant to an effective registration statement under the Act or a valid the Shares or the Warrant otherwise in accordance with an exemption therefromfrom registration under the Securities Act).
(d) Seller recognizes that the Shares, except as may the Warrant and the Exercise Shares cannot be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that resold unless they are still true, accurate subsequently registered under the Act or an exemption from such registration is available.
(e) Seller understands and correct to agrees that the Owner's actual knowledge as of Warrant and all certificates evidencing the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty Shares to be untrueissued to Seller and that the Exercise Shares will bear the following legend: THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or AS AMENDED (iiTHE “ACT”) unless said damages suffered by Highwoods because of such untrueOR APPLICABLE STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00)OFFERED FOR SALE, in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountPLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR LAWS OR, IF REASONABLY REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Pacific Ethanol, Inc.)
Securities Representations. (1a) Owner and each of its partners (in the event of a distribution of the Partnership Units by Owner to its Partners) will acquire the Partnership Units The Seller and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" Stockholder or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof accredited investors" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms . Each of the Registration Rights Agreement.
(2) Owner Seller and its partners believe they have sufficient the Stockholder has knowledge and experience in financial and business matters to enable them to evaluate such that it is capable of evaluating the merits and risks of the investment in the Partnership Units Common Stock issued to the Seller in the name of the Stockholder by the Buyer pursuant to this Agreement and is financially able to undertake the risks involved in such an investment. The Seller and the Underlying Shares. Owner and each Stockholder further understands that (i) the shares of its partners Common Stock issued pursuant to this Agreement have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have not been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act Act, or any state securities laws and cannot be resold without law by reason of their issuance in a transaction exempt from the registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion requirements of the Partnership Units Securities Act pursuant to Section 4(2) and Regulation D promulgated thereunder and an exemption under the applicable state securities law and (ii) such shares must be held indefinitely unless a registration statement covering the resale of such shares is effective under the Securities Act and such state law or the Underlying Shares unless such transfer has been registered or is exempt an exemption from registration under the Securities Act and any applicable such state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities lawslaw is available.
(5b) Owner The Buyer has granted the Seller and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None Stockholder and their attorneys or other representatives access to all information about the Buyer which the Seller and the Stockholder have requested; and the Seller and its attorneys or other representatives have had the opportunity to ask questions of, and receive answers from, representatives of the representations in this subparagraph Buyer concerning such information and the Buyer's financial condition and prospects.
(aac) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited The principal office of the Seller and the place at which the decision by the Registration Rights Agreement. All representations Seller and warranties of Owner contained the Stockholder to participate in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods transactions contemplated hereby was made is located at Closing a certificate certifying that they are still true, accurate and correct the address appearing next to the OwnerSeller's actual knowledge as of and the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state Stockholders' names in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount10 hereof.
Appears in 1 contract
Securities Representations. (A) Each Shareholder hereby acknowledges receipt of (1) Owner Atria's quarterly report on Form 10-Q for the quarter ending September 30, 1996, (2) the Registration Statement of Atria, dated July 29, 1996, on Form S-1, and each (3) Atria's 8-K, dated September 10, 1996 (collectively, the "Securities Documents").
(B) The Shareholder receiving Atria Shares represents that he (1) has received all the information it deems necessary concerning Atria to evaluate the transactions described in this Agreement, (2) is acquiring Atria's Shares for his own account, and (3) has no present intention of its partners (dividing his interest in Atria's Shares with others or disposing of Atria's Shares in the event absence of a distribution an opinion of counsel acceptable to Atria to the Partnership Units effect that Atria's Shares may be transferred without registration or unless the transfer of Atria's Shares is covered by Owner to its Partnersan effective registration statement.
(C) will acquire The Shareholder receiving Atria Shares represents that he is acquiring the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") Atria Shares for its or his own account for investment, and not with a view to the distribution or sale of Atria Shares and he is an accredited investor as defined in Rule 501 under the Securities Act. Such Shareholder has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of the proposed investment in Atria Shares. Such Shareholder understands that, except as may otherwise be provided in the "Registration Rights Agreement" (as defined in Section 5.8), such Shareholder's ability to dispose of the Atria Shares in the public market for sale such stock or otherwise is limited by the Securities Act, including Rule 144 promulgated thereunder, and, therefore, he may have to bear the risk of his investment in connection such Atria Shares for an indefinite period of time.
(D) The Shareholder receiving Atria Shares hereby acknowledges that each certificate representing Atria Shares that are issuable to such Stockholder pursuant to this Agreement shall be stamped or otherwise imprinted with any public distributions thereof within a legend substantially to the meaning of following effect: The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor,restricted securities" as such term is defined in Regulation D Rule 144 promulgated under the Securities Act. None of The securities may not be sold or offered for sale or otherwise distributed except (i) in conjunction with an effective registration statement for the representations shares under the Act, (ii) in this subparagraph compliance with Rule 144, or (aaiii) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective opinion of counsel satisfactory to any of the Acquired Companies that such registration or a valid exemption therefrom, except compliance is not required as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoingsale, Highwoods shall have no claim against Owner (i) for any representation offer or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountdistribution.
Appears in 1 contract
Securities Representations. (1) Owner Each Initial Purchaser, severally and each of its partners (in not jointly, represents and warrants to, and agrees with, the event of a distribution Issuers as of the Partnership Units by Owner to its PartnersClosing Date that:
(i) It is either: (A) a Qualified Institutional Buyer, (B) an institutional accredited investor (as such term is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) or (C) a non-U.S. Person (as such term is defined in Regulation S under the Securities Act) and will not acquire the Partnership Units and Securities for the common stock account or benefit of any U.S. Person;
(ii) It is acquiring the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") Securities for its or his own account account, for investment purposes only and not with a view to or for sale in connection any distribution thereof that would not otherwise comply with any public distributions thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.;
(2iii) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
It (3A) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge understands that the Partnership Units and the Underlying Shares are Securities have not been registered under the Securities Act or any state securities laws and cannot be resold without that the Securities are being issued by the Issuers in transactions exempt from the registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion requirements of the Partnership Units Securities Act and (B) agrees that neither all nor any part of the Securities may be offered or sold except pursuant to effective registration statements under the Underlying Shares unless such transfer has been registered Securities Act or is exempt pursuant to applicable exemptions from registration under the Securities Act and any in compliance with applicable state securities laws. Documents and/or certificates evidencing ;
(iv) It understands that the Partnership Units and exemption from registration afforded by Rule 144 (the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect provisions of which are known to the restrictions on transfer such Initial Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and under applicable state securities laws.that, if applicable, Rule 144 may afford the basis for sales only in limited amounts;
(5v) Owner and each partner thereof is an "accredited investor," Except as such term is defined disclosed, it did not employ any broker or finder in Regulation D promulgated under connection with the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained transactions contemplated in this Agreement shall and no fees or commissions are payable to the Initial Purchasers (it being understood and agreed that the Closing Payments do not constitute fees or commissions);
(vi) The source of funds to be true, accurate and correct used by such Initial Purchaser to Owner's actual knowledge as pay the purchase price of the date hereof and Owner shall deliver to Highwoods at Closing Securities does not include assets of any employee benefit plan (other than a certificate certifying that they are still trueplan exempt from the coverage of ERISA) or plan or any other entity the assets of which consist of “plan assets” of employee benefit plans or plans as defined in Department of Labor regulation Section 2510.3-101, accurate and correct to as amended by Section 3(42) of ERISA (the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state “Plan Asset Regulation”). As used in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to this clause (and limited by) instances of Owner's fraud related to the procurement of this Agreementvi), the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods term “employee benefit plan” shall have the right to bring a claim within any time allowed by any statute of limitations applicable meaning assigned to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees term in Article 33 of ERISA, and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods term “plan” shall have no claim against Owner (ithe meaning assigned thereto in Section 4975(e)(1) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property Code;
(vii) It either (A) is, and paid the Consideration to Owner; for so long as it holds any Securities, will be, a “venture capital operating company” or wholly owned by a “venture capital operating company” or (iiB) unless said damages suffered does not have, and for so long as it holds any Securities, will not have, “significant equity participation” by Highwoods because benefit plan investors pursuant to the Plan Asset Regulation. The term “venture capital operating company” shall have the meaning assigned to such term in the Plan Asset Regulation; and
(viii) The GS Purchasers will provide written notice (which notice may be given by email) to the Parent Issuer within 15 days of such untruethe occurrence of the GS Disposition Date, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars the Ares Purchasers will provide written notice ($100,000.00), in which case Highwoods shall notice may be entitled given by email) to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountParent Issuer within 15 days of the occurrence of the Ares Disposition Date.
Appears in 1 contract
Securities Representations. (1) Owner Each Initial Purchaser severally and each of its partners (in not jointly represents and warrants to, and agrees with, the event of a distribution Issuer as of the Partnership Units by Owner to its PartnersClosing Date that:
(a) will acquire It is either (i) a Qualified Institutional Buyer, (ii) an Institutional Accredited Investor or (iii) a non-U.S. Person (as such term is defined in Regulation S under the Partnership Units and Securities Act);
(b) It is acquiring the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") Notes for its or his own account account, for investment purposes only and not with a view to or for sale any distribution thereof that would not otherwise comply with the Securities Act;
(c) It (i) understands that the Notes have not been registered under the Securities Act and the Notes are being issued by the Issuer in connection with any public distributions thereof within transactions exempt from the meaning registration requirements of the Securities Act and (ii) agrees that all or any part of 1933, as amended the Notes may not be offered or sold except pursuant to effective registration statements under the Securities Act or pursuant to applicable exemptions from registration under the Securities Act and in compliance with applicable state laws;
(d) It understands that the exemption from registration afforded by Rule 144 (the "provisions of which are known to such Initial Purchaser) promulgated under the Securities Act")Act depends on the satisfaction of various conditions, except and that, upon exchange of Partnership Units if applicable, Rule 144 may afford the basis for Underlying Shares, such Underlying Shares may be sold pursuant resales only in limited amounts;
(e) Except as disclosed to the terms of Obligors, it did not employ any broker or finder in connection with the Registration Rights Agreement.Transaction and no commissions, fees or other compensation are payable by the Initial Purchasers to any such broker or finder; and
(2f) Owner and its partners believe they have It has been furnished with or has had access to the information it has requested from the Obligors, has sufficient knowledge and experience in financial and business matters to enable them to evaluate and is capable of evaluating the merits and risks of investment in the Partnership Units investing in, and the Underlying Shares. Owner is able and each of its partners have the ability prepared to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreementhaving invested in, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountNotes.
Appears in 1 contract
Securities Representations. (1) Owner The Shares are being issued to the Stockholder in reliance upon the following express representations and each of its partners (in the event of a distribution warranties of the Partnership Units by Owner to its Partners) will acquire Stockholder. The Stockholder represents and warrants that:
a. The Stockholder is acquiring the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") Shares for investment for its own account, not as a nominee or his own account agent, and not with a view to the sale or for sale in connection distribution of any part thereof, and the Stockholder has no present intention of selling, granting participation in, or otherwise distributing the same. The Stockholder does not have any contract, undertaking, agreement, or arrangement with any public distributions thereof within Person to sell, transfer or grant participations to such Person, or to any third party, with respect to any of the meaning of Shares.
b. The Stockholder understands that the Shares have not been registered under the Securities Act of 1933, as amended (the "“Securities Act")”) on the grounds that the issuance thereof is exempt from registration under the Securities Act, except that, upon exchange of Partnership Units for Underlying Shares, and that Cross Country’s reliance on such Underlying Shares may be sold pursuant to exemption is predicated in part on the terms of the Registration Rights Agreementrepresentations set forth herein.
c. The Stockholder (2i) Owner and its partners believe they have has sufficient knowledge and experience in financial and business matters so as to enable them to evaluate be capable of evaluating the merits and risks of acquiring the Shares, (ii) is able to bear the economic risk of the investment in the Partnership Units Shares for an indefinite period, including a complete loss of capital, and (iii) has been afforded (A) the Underlying Shares. Owner opportunity to ask such questions as it has deemed necessary of, and each to receive answers from, Representatives of Cross Country; (B) access to information about Cross Country and Country Country’s financial condition, results of operations, business and properties sufficient to enable it to evaluate its investment; and (C) the opportunity to obtain such additional information that Cross Country possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to such investment.
d. Stockholder represents that it is an “accredited investor,” as defined under Regulation D of the Securities Act, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its partners have purchase of the Shares, and has the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because risks of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountpurchase.
Appears in 1 contract
Sources: Restricted Stock Agreement (Cross Country Healthcare Inc)
Securities Representations. Each Member confirms and acknowledges to Pubco that:
(1i) Owner Such Member will be acquiring the Shares and each any shares of its partners (in the event of a distribution of the Partnership Units by Owner to its Partners) will acquire the Partnership Units and the common stock of issuable upon conversion thereof (collectively, the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares"“Securities”) for its or his own account account, for investment purposes only and not with a view to to, or for sale in connection with any public distributions thereof within the meaning with, a distribution, as that term is used in Section 2(11) of the Securities Act of 1933, as amended (the "“Securities Act"”), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished with, or had access to, information to a manner which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered require registration under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing Each Member can bear the Partnership Units economic risk of investment in the Securities, has knowledge and experience in financial business matters, is capable of managing the Underlying Shares mayrisk of investment in the Securities, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "“accredited investor," ” as such term is defined in Regulation D promulgated under the Securities Act. None Each Member recognizes that the Securities have not been registered under the Securities Act, nor under the securities laws of any state, and, therefore, cannot be resold unless the resale of the representations Securities is registered under the Securities Act or unless an exemption from registration is available. Each Member has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax, and financial advisors the suitability of an investment in this subparagraph (aa) shall prevent Owner the Securities for its particular tax and financial situation and its respective advisers if such advisors were deemed necessary, have determined that the Securities are a suitable investment for it. Each Member has not been offered the Securities by any form of general solicitation or its partners advertising, including, but not limited to, advertisements, articles, notices, or other communications published in any newspaper, magazine, or other similar media or television or radio broadcast or any seminar or meeting where, to such Member’s knowledge, those individuals that have attended have been invited by any such or similar means of general solicitation or advertising. Each Member has had an opportunity to ask questions of and receive satisfactory answers from exchanging Partnership Units for Shares Pubco, or selling Shares pursuant persons acting on behalf of Pubco, concerning the terms and conditions of the Securities and Pubco, and all such questions have been answered to the full satisfaction of such Member. Neither Pubco nor any other party has supplied any Member any information regarding the Securities or an effective registration or a valid exemption therefrom, except investment in the Securities other than as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be trueAgreement, accurate and correct each Member is relying on its own investigation and evaluation of Pubco and the Securities and not on any other information;
(ii) Each Member (A) is aware of, has received and had an opportunity to Owner's actual knowledge as of review (i) Pubco’s Annual Report on Form 10-K for the date hereof year ended December 31, 2023; (ii) Pubco’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, and Owner shall deliver (iii) Pubco’s current reports on Form 8-K from January 1, 2024, to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; providedsuch Member’s entry into this Agreement (which filings can be accessed by going to h▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/companysearch.html, if any such representations or warranties are not truetyping “Reliant Holdings” in the “Company name” field, accurate and correct to Owner's actual knowledge as of clicking the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent“Search” button), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the each case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untruethrough (ii), inaccurate or incorrect when including the audited and unaudited financial statements, description of business, risk factors, results of operations, certain transactions and related business disclosures described therein (collectively the “Disclosure Documents”) and an independent investigation made by Owner if the facts or circumstances which caused such representation or warranty it of Pubco. Each Member acknowledges that due to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing its receipt of and Highwoods nevertheless closed the acquisition review of the Property and paid information described above, it has received similar information as would be included in a Registration Statement filed under the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount.Securities Act and
Appears in 1 contract
Securities Representations. (1a) Owner Subscriber represents and each of its partners (in warrants that it is purchasing the event of a distribution of the Partnership Units by Owner to its Partners) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") solely for investment solely for its or his own account and not with a view to or for sale in connection with any public distributions the resale or distribution thereof within except as permitted under the meaning of Registration Statement or as otherwise permitted under the Securities Act of 1933, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2b) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate Subscriber understands that it may sell or otherwise transfer the merits and risks of investment in Units, the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished withNotes, PIK Notes or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods Warrants or the REIT concerning terms and conditions shares issuable on conversion of the acquisition Notes or PIK Notes or exercise of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not Warrants only if such transaction is duly registered under the Securities Act Act, under the Registration Statement or any state securities laws and cannot otherwise, or if Subscriber shall have received the favorable opinion of counsel to Subscriber, which opinion shall be resold without registration thereunder reasonably satisfactory to counsel to the Company, to the effect that such sale or exemption therefrom. Owner and its partners agree that they will not other transfer all or any portion may be made in the absence of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act Act, and any registration or qualification in every applicable state state. The certificates representing the aforesaid securities lawswill be legended to reflect these restrictions, and stop transfer instructions will apply. Documents and/or certificates evidencing Subscriber realizes that the Partnership Units and the Underlying Shares may, unless otherwise registered, contain are not a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities lawsliquid investment.
(5c) Owner Subscriber has not relied upon the advice of a "Purchaser Representative" (as defined in Regulation D of the Securities Act) in evaluating the risks and each partner thereof merits of this investment. Subscriber has the knowledge and experience to evaluate the Company and the risks and merits relating thereto.
(d) Subscriber represents and warrants that Subscriber is an "accredited investor," as such term is defined in Rule 501 of Regulation D promulgated under pursuant to the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of such on the date hereof any Units are issued to Subscriber; Subscriber acknowledges that Subscriber is able to bear the economic risk of losing Subscriber's entire investment in the shares and Owner understands that an investment in the Company involves substantial risks; Subscriber has the power and authority to enter into this agreement, and the execution and delivery of, and performance under this agreement shall deliver to Highwoods at Closing a certificate certifying that they are still truenot conflict with any rule, accurate and correct regulation, judgment or agreement applicable to the OwnerSubscriber; and Subscriber has invested in previous transactions involving restricted securities. Subscriber has had the opportunity to discuss the Company's actual knowledge as of affairs with the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to OwnerCompany's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountofficers.
Appears in 1 contract
Securities Representations. (1i) Owner and each of its partners (in Member recognizes that the event of a distribution membership interests of the Partnership Units by Owner to its Partners) will acquire of the Partnership Units Company and the any shares of common stock of TRxADE HEALTH, Inc. which may be contributed to the REIT issued Company pursuant to Section 8.6A the terms of the Partnership earnout set forth in the Operating Agreement (collectively, the "Underlying Shares" or "Shares"“Securities”) for its or his own account and have not with a view to or for sale in connection with any public distributions thereof within the meaning of been registered under the Securities Act of 1933, as amended (the "Securities “1933 Act",” or the “Act”), except thatnor under the securities laws of any state and, upon exchange of Partnership Units for Underlying Sharestherefore, such Underlying Shares may cannot be sold pursuant to resold unless the terms resale of the Registration Rights Agreement.Securities is registered under the 1933 Act or unless an exemption from registration is available. Member/Company may not sell the Securities without registering them under the 1933 Act and any applicable state securities laws unless exemptions from such registration requirements are available with respect to any such sale. Neither Trxade Health/Company is under any obligation to register such Securities under the 1933 Act or under any state “Blue Sky” laws prior to or subsequent to their issuance;
(2ii) Owner and its partners believe they have sufficient Member is an “accredited investor” as such term is defined under Rule 501 of the Act;
(iii) Member has such knowledge and experience in financial and business matters to enable them to evaluate such that Member is capable of evaluating the merits and risks of an investment in the Partnership Units Securities and of making an informed investment decision, and does not require a representative in evaluating the Underlying Sharesmerits and risks of an investment in the Securities;
(iv) Member recognizes that an investment in the Securities is a speculative venture and that the total amount of consideration tendered in connection with the Securities is placed at the risk of the business and may be completely lost. Owner The ownership of the Securities as an investment involves special risks;
(v) Member confirms and each of its partners have the ability represents that it is able (i) to bear the economic risk of acquiring the Partnership Units and Securities, (ii) to hold the Underlying Shares.
Securities (3to the extent acquired by the Member) Owner and each for an indefinite period of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisionstime, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had (iii) to afford a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions complete loss of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge Securities. Member also represents that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer it has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) adequate means of providing for any representation or warranty which was untrueits current needs and possible personal contingencies, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because has no need for liquidity in the Securities;
(vi) Member has carefully considered and has, to the extent it believes such discussion necessary, discussed with its professional, legal, tax and financial advisors, the suitability of an investment in the Securities for its particular tax and financial situation and its advisers, if such untrueadvisors were deemed necessary, inaccurate have determined that the Securities are a suitable investment for it;
(vii) Trxade Health/Company is under no obligation to register or incorrect representation seek an exemption under any federal and/or state securities acts for any sale or warranty exceeds One Hundred Thousand transfer of the Securities, and no/100 Dollars ($100,000.00)Member is solely responsible for determining the status, in its hands, of the Securities acquired (to the extent acquired by the Member) and the availability, if required, of exemptions from registration for purposes of sale or transfer of the Securities;
(viii) The Member is acquiring the Securities (to the extent acquired) for its own account for long-term investment and not with a view toward resale, fractionalization or division, or distribution thereof, and it does not presently have any reason to anticipate any change in its circumstances, financial or otherwise, or particular occasion or event which case Highwoods shall would necessitate or require its sale or distribution of the Securities; and
(ix) Member understands and agrees that a legend has been or will be entitled to file a claim for all actual damages suffered by Highwoods including placed on any certificate(s) or other document(s) evidencing the said $100,000.00 threshold amountSecurities in substantially the following form: “THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES ACT. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS (I) THEY SHALL HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND ANY APPLICABLE STATE SECURITIES ACT, OR (II) THE CORPORATION SHALL HAVE BEEN FURNISHED WITH AN OPINION OF COUNSEL, SATISFACTORY TO COUNSEL FOR THE CORPORATION, THAT REGISTRATION IS NOT REQUIRED UNDER ANY SUCH ACTS.”
Appears in 1 contract
Sources: Member Asset Contribution Agreement (TRxADE HEALTH, INC)
Securities Representations. (1a) Owner and each of its partners (in the event of Each Shareholder is a distribution resident of the Partnership Units by Owner to its Partners) will acquire the Partnership Units state set forth opposite such Shareholder's name on Schedule 5.23, and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the Michael L. Moore, Frances Penfold and Dale A. Spencer are "Underlying Shares▇▇▇▇▇▇▇▇▇▇ ▇▇▇es▇▇▇▇" or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof within the meaning of ▇▇ ▇▇▇▇ ▇erm i▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇f Regulation D under the Securities Act of 1933, as amended (the "Securities 1933 Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2b) Owner Each Shareholder has read the Securities Reports. Axiom has made available to each Shareholder all documents that the Shareholders have requested relating to the Axiom Shares, and its partners believe they have sufficient knowledge and experience in financial and business matters has provided answers to enable them to evaluate all of Shareholders' questions concerning the merits and risks of investment in the Partnership Units and the Underlying Axiom Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have been furnished withIn addition, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners Shareholders have had a full an opportunity to discuss the Axiom Shares with representatives of Axiom and to ask questions of them. Without limiting the foregoing, each Shareholder understands and receive answers from Highwoods acknowledges that neither Axiom, Acquisition nor anyone acting on the behalf of either has made any representations or warranties other than those contained herein respecting Axiom or the future conduct of Axiom's business or of IDT's business, and no Shareholder has relied upon any representations or warranties other than those contained herein in the REIT or any person or persons acting belief that they were made on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying SharesAxiom.
(4c) Owner Each Shareholder recognizes that receipt of Axiom Shares involves certain risks, including without limitation those set forth in the Registration Statement on Form S-1 that is one of the Securities Reports, and each has sufficient knowledge to understand all such risks.
(d) Each Shareholder is acquiring the Axiom Shares to be issued to such Shareholder without a view to any distribution or resale thereof, other than a distribution or resale that, in the opinion of its partners hereby acknowledge that counsel, which opinion is satisfactory to Axiom, may be made without violating the Partnership Units registration provisions of the 1933 Act or applicable securities laws of the jurisdiction in which such Shareholder resides. The Axiom Shares to be acquired by the Shareholders are "restricted securities" within the meaning of Rule 144 under the 1933 Act and the Underlying Shares are have not been registered under the Securities 1933 Act and therefore must be held indefinitely unless they are subsequently registered under the 1933 Act or any an exemption from registration is available.
(e) Each Shareholder understands that there shall be endorsed on the certificate evidencing the Axiom Shares delivered contemporaneously herewith a legend substantially similar to the following: "THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE 1933 ACT'), OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND ARE RESTRICTED SECURITIES' AS DEFINED BY RULE 144 UNDER THE 1933 ACT. THE SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR DISTRIBUTED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE SHARES UNDER THE 1933 ACT, OR IN LIEU THEREOF, AN OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY TO THE ISSUER OF THE SHARES, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACTS."
(f) Each Shareholder acknowledges that (i) such Shareholder is at least 21 years of age, (ii) such Shareholder has adequate means of providing for his current needs and personal contingencies, (iii) such Shareholder has no need for liquidity in the Axiom Shares acquired in connection herewith, (iv) such Shareholder maintains his domicile and is not a transient or temporary resident at the address shown below and (v) all of such Shareholder's investments in and commitments to non-liquid assets and similar investments are, and after such Shareholder's receipt of the Axiom Shares, will be, reasonable in relation to such Shareholder's net worth and current needs.
(g) Each Shareholder understands that the Axiom Shares are being issued in reliance on specific exemptions from the registration requirements of Federal and state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner that Axiom and its partners agree that they will not transfer all or any portion the principals and controlling persons thereof are relying upon the truth and accuracy of the Partnership Units or representations, warranties, agreements, acknowledgments, and understandings set forth herein in order to determine the Underlying Shares unless applicability of such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units exemptions and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because suitability of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled Shareholder to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountacquire Axiom Shares.
Appears in 1 contract
Sources: Merger Agreement (Axiom Inc)
Securities Representations. Each of Holders hereby represent and warrant to ONVC as follows: (1) Owner and each of its partners (Holders may not qualify as an "Accredited Investor", as such term is defined in the event of a distribution of the Partnership Units by Owner Rule 501(a) to its Partners) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act")) but each of Holders is acquiring the Restricted Shares for their own account without any view to or for their resale or distribution, except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
all as et forth herein; (2) Owner each of Holders' address as set forth on the Transfer Power is each of Holders' true and its partners believe they have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner correct residence and each of its partners have the ability to bear the economic risk Holders has no present intention of acquiring the Partnership Units and the Underlying Shares.
becoming a resident of any other state or jurisdiction; (3) Owner the Restricted Shares are being acquired solely for each of Holders' own account, for investment, and are not being purchased with a view to or for the resale, distribution, subdivision, or fractionalization thereof and each of its partners have been furnished withHolders has no present plans to enter into any contract, undertaking, agreement, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
arrangement relating thereto; (4) Owner and each of its partners hereby acknowledge Holders understands that none of the Restricted Shares have been or will be registered under the Securities Act, that each of Holders has no rights to require that the Partnership Units and the Underlying Restricted Shares are not be registered under the Securities Act or any state securities laws or blue sky laws; that each of Holders may have to hold the Restricted Shares for a substantial period of time and canthat it may not be resold without possible for each of Holders to liquidate each of Holders' investment in ONVC; and that in any event the Restricted Shares may not be assigned, transferred, pledged, or otherwise sold or offered for sale except pursuant to an effective registration thereunder statement under the Securities Act or pursuant to an exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing Act, the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect availability of which must be established by each of Holders to the restrictions on transfer under the Securities Act satisfaction of ONVC; and under applicable state securities laws.
in replacement or exchange therefore, are to bear a restrictive legend to this effect; (5) Owner each of Holders is acquiring the Restricted Shares without being furnished any offering literature or prospectus, but each of Holders has been granted, and is relying upon, each partner thereof of Holders' personal discussions, investigations and due diligence of ONVC and its officers; (6) each of Holders has such knowledge and experience in business and financial matters that each of Holders is an "accredited investor," capable of evaluating the business and financial matters of ONVC and the risks and merits relating thereto; (7) that there has never been any representation, guarantee, or warranty made to each of Holders by any broker, ONVC, its agents or employees, or any other person, expressly or by implication, as such term is defined in Regulation D promulgated under to any gain or profit to be derived from, or the Securities Act. None approximate or exact length of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as time that each of Holders may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct required to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreementremain an owner of, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only Restricted Shares, or as to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountother matter not expressly contained herein.
Appears in 1 contract
Sources: Acquisition Agreement (Online Vacation Center Holdings Corp)
Securities Representations. (1) Owner and each of its partners (in the event of a Except for any distribution of the Partnership Units by Owner Shares to its Partners) will acquire the Partnership Units members and the common stock of the REIT issued any Member's sale pursuant to registration under Section 8.6A of 18, the Partnership Agreement (Seller will hold the "Underlying Shares" or "Shares") Shares for its or his own account for investment purposes only, and not with a view to to, or for sale resale in connection with with, any public distributions thereof within the meaning distribution of the Securities Act of 1933, as amended (the "Securities Act")all or any part thereof, except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreementin compliance with applicable federal or state securities laws.
(2) Owner and its partners believe they Seller understands that (A) the Shares (1) have sufficient knowledge and experience in financial and business matters to enable them to evaluate the merits and risks of investment in the Partnership Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners have not been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot laws, (2) will be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt issued in reliance upon exemptions from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing laws for an offer and sale of securities not involving a public offering, and(3) may not be sold, transferred or otherwise disposed of without satisfaction of certain conditions, including registration under, or the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer availability of any exemption from registration under the Securities Act and under applicable state securities laws, and (B) Seller must therefore bear the economic risk of such investment indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities laws or is exempt therefrom. Seller further understands that such exemptions depend upon, among other things, the nature of the investment intent of Seller expressed herein.
(3) Seller has been furnished by Buyer and Energen all information (or provided access to all information) regarding the business and financial condition of Energen, the attributes of the Shares and the merits and risks of an investment in the Shares which Seller has requested to evaluate an investment in the Shares. Specifically, Seller acknowledges that Seller has had an opportunity to review Energen's Annual Report on Form 10-K for the year ended September 30, 2001 and Quarterly Report on Form 10-Q for the quarter ended December 31, 2001 and the other SEC Documents (as defined in Section 5(i)).
(4) Seller is an "accredited investor" as defined in Rule 501 of Regulation D promulgated under the Act, and Seller, or those persons retained by Seller, have knowledge, skill and experience in financial, business and investment matters relating to an investment of the same nature as the Shares and are capable of evaluating the merits and risks of such investment and protecting Seller in connection with the purchase and an investment in the Shares. Seller has, to the extent deemed necessary, retained, at its own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of an investment in the Shares. Seller has examined the SEC Documents, or caused the same to be examined, by its representatives to the extent it deems necessary or appropriate. Seller has not received any legal, business, tax or other advice from Energen, its counsel or other representatives.
(5) Owner No person or entity, other than Energen, has been authorized to give any information or to make any representations on behalf of Energen in connection with the purchase, and each partner thereof is an "accredited investor," if given or made, such information or representations have not been relied upon by Seller as such term is defined having been made or authorized by Energen. The only representations, warranties and information made by Energen in Regulation D promulgated under connection with the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner purchase are those contained in this Agreement shall be trueand the SEC Documents.
(6) Energen has provided Seller the opportunity to ask questions of, accurate and correct receive answers from, Energen and Buyer and their respective officers and directors concerning the purchase and the Shares and to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct obtain any appropriate additional information necessary to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when investment decision being made by Owner if Seller in connection with the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing Purchase and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountShares.
Appears in 1 contract
Securities Representations. (1) Owner and each of its partners (in the event of a distribution Each of the Partnership Units by Owner to its PartnersGreenspun Shareholders has received and reviewed a copy of CCI's Form 10-K for the fiscal year ended December 31, 1997. Each Greenspun Shareholder either (i) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the is an "Underlying Sharesaccredited investor" or "Shares") for its or his own account and not with a view to or for sale in connection with any public distributions thereof within the meaning of Rule 501(a) of Regulation D under the Securities Act Act; or (ii) has appointed a "purchaser representative" within the meaning of 1933, as amended (Rule 501(h) of Regulation D under the "Securities Act. Each Greenspun Shareholder which is not an ")accredited investor" within the meaning of Rule 501(a) of Regulation D under the Securities Act, except thateither alone or with its purchaser representative, upon exchange of Partnership Units for Underlying Shares, has such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2) Owner and its partners believe they have sufficient knowledge and experience in business and financial matters and business matters to enable them to evaluate such knowledge concerning the business, operations and financial condition of PSD and of CCI that such Greenspun Shareholder (A) is capable of evaluating the merits and risks of any investment in the Partnership Units shares of CCI Class A Common Stock and CCI Preferred Stock and (B) fully understands the Underlying Sharesnature, scope, and duration and limitations on transfer contained herein and under applicable law. Owner Each Greenspun Shareholder, or such Greenspun Shareholder's purchaser representative, has had an adequate opportunity to ask questions and each receive answers (and has asked such questions and received answers to his satisfaction) from the officers of its partners have CCI concerning the ability to business, operations and financial condition of CCI. Each Greenspun Shareholder can bear the economic risk of acquiring an investment in the Partnership Units shares of CCI Class A Common Stock and the Underlying Shares.
(3) Owner CCI Preferred Stock and each can afford a complete loss of its partners have been furnished with, or had access to, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correctinvestment. Except as required by applicable law, such Greenspun Shareholder has no contract, undertaking, agreement or arrangement, written or oral, with respect any other person to (and limited by) instances sell, transfer or grant participation in any shares of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on CCI Class A Common Stock or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty CCI Preferred Stock to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed acquired by such Greenspun Shareholder in the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountMerger.
Appears in 1 contract
Securities Representations. (1i) Owner and each of its partners (the Parent is a reporting issuer under Applicable Securities Legislation in the event of a distribution at least one of the Partnership Units by Owner to Reporting Jurisdictions and its PartnersCommon Shares are listed for trading on the TSX;
(ii) the Parent has complied and will acquire comply with all Applicable Laws and regulations, including Applicable Securities Legislation, including the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his own account and not with a view to or for sale TSX Rules in connection with any public distributions thereof within the meaning issuance of the Securities Act Lender Warrants;
(iii) No order or ruling suspending the sale or ceasing the trading in any securities of 1933the Parent has been issued (and has not been revoked or otherwise expired) by any securities regulatory authority or, as amended (the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms best knowledge of the Registration Rights AgreementCredit Parties, is pending, contemplated or threatened by any securities regulatory authority.
(2iv) Owner and its partners believe they have sufficient knowledge and experience the Parent is not in financial and business matters to enable them to evaluate default of any Applicable Securities Legislation or the merits and risks TSX Rules nor is it included in a list of investment defaulting reporting issuers maintained by any securities commissions where the Parent is a reporting issuer or other securities regulatory authorities in the Partnership Units provinces and the Underlying Shares. Owner and each territories of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.Canada;
(3v) Owner no order ceasing, halting or suspending trading nor prohibiting the sale of Common Shares has been issued to and each of is outstanding against the Parent or its partners have been furnished withDirectors, officers or had access topromoters and, information to which a reasonable investor would attach significance in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions best of the acquisition Parent’s knowledge, no investigation or proceedings for such purposes are pending or threatened;
(vi) the Parent has complied in all material respects with all of the Partnership Units and the Underlying Shares.
(4) Owner and each requirements of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered under the Securities Act or any state securities laws and cannot be resold National Instrument 43-101, including without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares maylimitation, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer preparation and filing of any technical reports;
(vii) upon delivery, the Lender Warrants are duly and validly created, authorized and issued. The Common Shares to be issued to the Lender upon the exercise of the Lender Warrants are and will be duly and validly authorized and reserved for issuance to the Lender, and upon the exercise of the Lender Warrants, such Common Shares will be duly authorized, validly issued as fully paid and non-assessable shares in the capital of the Parent, and the Lender will be the legal and registered owner of such Common Shares and will have good title thereto free and clear of all Liens arising by, through or under the Parent or its Subsidiaries. The Lender Warrants and Common Shares have been or will be, as applicable, offered, issued, sold and delivered to the Lender in compliance with all Applicable Securities Act and under applicable state securities laws.Legislation; and
(5viii) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None first trade of the representations in this subparagraph (aa) shall prevent Owner Lender Warrants or its partners from exchanging Partnership Units for the Common Shares or selling Shares pursuant to an effective registration or a valid exemption therefrom, except as may be limited acquired upon the exercise thereof by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall holder thereof will be true, accurate and correct to Owner's actual knowledge as exempt from the prospectus requirements of the date hereof Applicable Securities Legislation provided that:
(A) the Parent is and Owner shall deliver to Highwoods has been a reporting issuer in a jurisdiction of Canada for at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of least four months immediately preceding the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge trade;
(B) at least four months have elapsed from the distribution date (as defined in National Instrument 45-102) of the date of Closing, Owner shall so state in said certificate and shall disclose Lender Warrants;
(C) certificates representing the facts Lender Warrants issued on or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) within four months after the date Effective Date, were issued with a legend stating the prescribed restricted period in accordance with Section 2.5 of Closing unless National Instrument 45-102;
(and only D) such trade is not a control distribution as defined in National Instrument 45-102;
(E) no unusual effort is made to prepare the extent), on market or before to create a demand for the securities that are the subject of the trade;
(F) no extraordinary commission or consideration is paid to a Person in respect of such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages trade; and
(including attorneys' fees and expenses and court costsG) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts selling security holder is an insider or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition officer of the Property and paid Parent, the Consideration selling security holder has no reasonable grounds to Owner; or (ii) unless said damages suffered by Highwoods because believe that the Parent is in default of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountany Applicable Securities Legislation.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Atna Resources LTD)
Securities Representations. (1) Owner and each of its partners (in Each Contributor is acquiring the event of a distribution of the Partnership Contributee Units by Owner to its Partners) will acquire the Partnership Units and the common stock of the REIT issued pursuant to Section 8.6A of the Partnership Agreement (the "Underlying Shares" or "Shares") for its or his own account and not with a view to to, or for sale offer of resale in connection with any public distributions thereof with, a distribution thereof, within the meaning of the Securities Act Act. In acquiring the Contributee Units, such Contributor is not offering or selling, and will not offer or sell, for itself in connection with any distribution of 1933the Contributee Units, and such Contributor does not have a participation in and will not participate in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities Laws. Each Contributor is an “accredited investor” as amended (such term is defined under Regulation D promulgated under the "Securities Act"). Additionally, except thateach Contributor acknowledges that it is able to fend for itself, upon exchange can bear the economic risk of Partnership Units for Underlying Sharesits investment in the Contributee Units, and has such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2) Owner and its partners believe they have sufficient knowledge and experience in financial and business matters similar to enable them to evaluate the transaction described herein such that it is capable of evaluating the merits and risks of an investment in the Partnership Contributee Units. Further, each Contributor understands that such Contributee Units and the Underlying Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.
(3) Owner and each of its partners will not have been furnished withregistered pursuant to the Securities Act or any applicable state securities Laws, or had access tothat the Contributee Units, information to which a reasonable investor would attach significance in making investment decisionswhen issued, will be characterized as “restricted securities” under federal securities Laws, and Owner that under such Laws and each applicable regulations the Contributee Units cannot be sold or otherwise disposed of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Shares.
(4) Owner and each of its partners hereby acknowledge that the Partnership Units and the Underlying Shares are not registered without registration under the Securities Act or any state securities laws and cannot be resold without registration thereunder or an exemption therefrom. Owner and its partners agree Each Contributor represents that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or it is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend familiar with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D Rule 144 promulgated under the Securities Act, as currently in effect, and understands the resale limitations imposed thereby and by the Securities Act. None Stop transfer instructions may be issued to the transfer agent for securities of the representations Contributee (or a notation may be made in this subparagraph (aathe appropriate records of the Contributee) in connection with the Contributee Units issued hereunder. It is agreed and understood by each Contributor that, should any certificate be issued representing any of the Contributee Units, each such certificate shall prevent Owner conspicuously set forth on the face or its partners from exchanging Partnership back thereof, in addition to any legends required by applicable Law or other agreement, a legend in substantially the following form: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS THEY ARE FIRST REGISTERED PURSUANT TO THAT ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS EAGLE ROCK ENERGY PARTNERS, L.P. RECEIVES A WRITTEN OPINION OF COUNSEL, WHICH OPINION AND COUNSEL ARE SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. Each Contributor represents and acknowledges that Contributee is issuing the Contributee Units for Shares or selling Shares pursuant to an effective exemption from the registration or a valid exemption therefrom, except as may be limited by the Registration Rights Agreement. All representations and warranties of Owner contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as requirements of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, Securities Act based on the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before provided by such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amountContributor hereunder.
Appears in 1 contract
Sources: Partnership Interests Contribution Agreement (Eagle Rock Energy Partners L P)
Securities Representations. Such Contributing Stockholder hereby acknowledges the following:
(1a) Owner (i) The Company Shares have not been registered under the Securities Act, nor qualified under the securities laws of any other jurisdiction, (ii) the Company Shares cannot be resold unless they subsequently are registered under the Securities Act and each of its partners qualified under applicable state securities laws, unless the Company determines that exemptions from such registration and qualification requirements are available, and (iii) such Contributing Stockholder has no right to require such registration or qualification except as provided in the event of a distribution of Registration Rights Agreement (or the Partnership Units agreement which it amends);
(b) The Company Shares to be acquired by Owner to its Partners) will acquire the Partnership Units and the common stock of the REIT issued Contributing Stockholders pursuant to Section 8.6A of the Partnership this Agreement (the "Underlying Shares" or "Shares") will be acquired for its or his such Contributing Stockholder’s own account and not with a view to to, or for sale intention of, distribution thereof in connection with violation of the Securities Act, or any public distributions thereof within applicable state securities laws, and the meaning Company Shares will not be disposed of in contravention of the Securities Act of 1933, or any applicable state securities laws;
(c) Each Contributing Stockholder is an “accredited investor” as amended (defined in Rule 501(a) under the "Securities Act"), except that, upon exchange of Partnership Units for Underlying Shares, such Underlying Shares may be sold pursuant to the terms of the Registration Rights Agreement.
(2) Owner and its partners believe they have sufficient . Each Contributing Stockholder has substantial knowledge and experience in financial and business matters to enable them to evaluate matters, has specific experience making investment decisions of a similar nature, and is capable, without the use of a financial advisor, of utilizing and analyzing the information made available in connection with the acquisition of the Company Shares and of evaluating the merits and risks of an investment in the Partnership Units and the Underlying Company Shares. Owner and each of its partners have the ability to bear the economic risk of acquiring the Partnership Units and the Underlying Shares.;
(3d) Owner Each Contributing Stockholder has carefully reviewed and each of its partners have been furnished withunderstands the risks of, or had access and other considerations relating to, information to which a reasonable investor would attach significance an investment in making investment decisions, and Owner and each of its partners have been furnished with copies of all other materials which they have requested and Owner and its partners have had a full opportunity to ask questions of and receive answers from Highwoods and the REIT or any person or persons acting on behalf of Highwoods or the REIT concerning terms and conditions of the acquisition of the Partnership Units and the Underlying Company Shares.;
(4e) Owner and each of Each Contributing Stockholder understands that its partners hereby acknowledge investment in the Company Shares is subject to significant economic risk, including the relative illiquidity resulting from the fact that the Partnership Units and Company Shares (i) have not been registered under the Underlying Shares Securities Act and, therefore, cannot be sold unless they are not subsequently registered under the Securities Act or any state securities laws and cannot be resold without registration thereunder or exemption therefrom. Owner and its partners agree that they will not transfer all or any portion of the Partnership Units or the Underlying Shares unless such transfer has been registered or is exempt from registration under the Securities Act and any applicable state securities laws. Documents and/or certificates evidencing the Partnership Units and the Underlying Shares may, unless otherwise registered, contain a prominent legend with respect to the restrictions on transfer under the Securities Act and under applicable state securities laws.
(5) Owner and each partner thereof is an "accredited investor," as such term is defined in Regulation D promulgated under the Securities Act. None of the representations in this subparagraph (aa) shall prevent Owner or its partners from exchanging Partnership Units for Shares or selling Shares are sold pursuant to an effective registration exemption from such registration, and (ii) are subject to additional restrictions as provided herein. Such Contributing Stockholder is able to bear such economic risk of the investment in the Company Shares for an indefinite period of time;
(f) Each Contributing Stockholder has had an opportunity to ask questions and receive answers concerning the terms and conditions of the offering of the Company Shares and has had full access to such other information concerning the Company as it has requested; and
(g) No Contributing Stockholder has received or a valid exemption therefrom, except as may be limited by the Registration Rights is relying upon any written offering literature or prospectus other than this Agreement. All Further, no Contributing Stockholder has received or is relying upon any oral representations and warranties of Owner which are in any manner inconsistent with the written information contained in this Agreement shall be true, accurate and correct to Owner's actual knowledge as of the date hereof and Owner shall deliver to Highwoods at Closing a certificate certifying that they are still true, accurate and correct to the Owner's actual knowledge as of the date of Closing; provided, if any such representations or warranties are not true, accurate and correct to Owner's actual knowledge as of the date of Closing, Owner shall so state in said certificate and shall disclose the facts or circumstances which have caused such representation or warranty to no longer be true, accurate and correct. Except with respect to (and limited by) instances of Owner's fraud related to the procurement of this Agreement, the representations and warranties set forth in this Section 6.02 shall expire on that date which is twelve (12) months after the date of Closing unless (and only to the extent), on or before such date, Highwoods files a claim against Owner for breach of a representation or warranty in a court of competent jurisdiction. In the case of fraud, Highwoods shall have the right to bring a claim within any time allowed by any statute of limitations applicable to such fraud. Any such claim shall be limited to actual damages (including attorneys' fees and expenses and court costs) suffered by Highwoods. Notwithstanding the foregoing, Highwoods shall have no claim against Owner (i) for any representation or warranty which was untrue, inaccurate or incorrect when made by Owner if the facts or circumstances which caused such representation or warranty to be untrue, inaccurate or incorrect were disclosed to Highwoods or were discovered or became known to Highwoods prior to Closing and Highwoods nevertheless closed the acquisition of the Property and paid the Consideration to Owner; or (ii) unless said damages suffered by Highwoods because of such untrue, inaccurate or incorrect representation or warranty exceeds One Hundred Thousand and no/100 Dollars ($100,000.00), in which case Highwoods shall be entitled to file a claim for all actual damages suffered by Highwoods including the said $100,000.00 threshold amount.
Appears in 1 contract