Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares: (a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller. (b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws). (c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller. (d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement. (e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement. (f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. (g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares. (h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted. (i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Tafazzoli Farshid), Stock Purchase Agreement (Cruz Ralph L), Stock Purchase Agreement (Cruz William R)
Representations and Warranties by Seller. The Seller warrants and represents to Buyer that as of the Effective Date and warrants the date of Closing, each of the following to each Purchaser in order to induce the Purchasers to purchase the Sharesrepresentations shall be true and correct:
(ai) Seller has is a duly organized and validly existing limited liability company under the laws of the State of Delaware and on the date of Closing will have full power and authority to execute and deliver this Agreement and sell the Property to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against SellerBuyer.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(cii) The execution and delivery of this Agreement has been duly authorized by all necessary action of Seller, and the performance this Agreement will, when executed and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold delivered by Seller, whether tangible or intangibleconstitute the valid and binding obligation of Seller and will be enforceable in accordance with its terms, under (A) the Seller's organizational or constituent instrumentsexcept as such enforceability may be limited by bankruptcy, if any (includinginsolvency, without limitationreorganization, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, moratorium or other agreement or instrument applicable laws and by general principles of any kind equity (whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, applied in a proceeding at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreementequity).
(eiii) Seller has sufficient knowledge The execution, delivery and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) performance of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companythis Agreement does not, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated hereby will not, violate any provision of the Articles of Organization or operating agreement of Seller, or any provision of any agreement, instrument, order, judgment or decree to which either Seller is a party or by which it or any of its assets is bound.
(iv) Seller has not used or operated the Property in any manner for the storage, use, treatment, manufacture or disposal of any hazardous or toxic materials or substances, petroleum products or hydrocarbons except in a manner that is in compliance with applicable law and in quantities reasonably customary and necessary for the Intended Use.
(v) Except as may be disclosed on the Title Commitment, including recorded monetary liens affecting title as of the Effective Date, no lien, other than a lien for real estate taxes not yet due and payable, encumbers or affects title to the Property or any portion of the Property.
(vi) Seller has received no written notice of any claim, action, litigation, arbitration or other proceeding pending or, to the best of Seller’s knowledge (without implying any duty of investigation or inquiry), threatened against Seller which relates to the Property or any portion of the Property, or the transactions contemplated hereby or which could result in the imposition of a lien against the Property or any portion of the Property or an action against Buyer. If Seller receives notice of any such claim, litigation or proceeding prior to Closing the transaction contemplated under this Agreement, and such representation has included an examination of all tax, financial and legal aspects Seller shall promptly notify Buyer of the transactions contemplated by this Agreementclaim, litigation or proceeding in writing.
(vii) Seller has received no written notice of any existing, pending, or, to the best of Seller’s knowledge, threatened condemnation, incorporation, annexation or moratorium proceedings affecting the Property or any portion of the Property.
Appears in 2 contracts
Sources: Real Estate Purchase Agreement (Lazydays Holdings, Inc.), Real Estate Purchase Agreement (Lazydays Holdings, Inc.)
Representations and Warranties by Seller. The Seller represents and warrants as of the following to each Purchaser in order to induce Effective Date and during the Purchasers to purchase the SharesTerm of this Agreement that:
(a) Seller has It is a corporation duly organized, validly existing and in good standing under the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. laws of its incorporating jurisdiction.
(b) The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or and the consummation by Seller of the transactions contemplated thereby have been duly authorized by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a validall necessary board, binding and enforceable agreement shareholder or other company action on behalf of and against the Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will is not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise subject to any right of contingent paymentcharter, terminationbylaw, cancellationlien or encumbrance, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement instrument, order or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning body which would prevent the consummation of the transactions contemplated by this Agreement. The execution, delivery and performance of this Agreement by Seller does not and will not violate any material statute, ordinance or governmental rule or regulation applicable to Seller, or result in a breach or constitute a default under any indenture or agreement to which it is a Party or by which it or its property may be bound. This Agreement has been duly executed and delivered by Seller, and this Agreement does, and such representation documents and instruments executed as the result thereof shall, constitute legal, valid and binding obligations of Seller enforceable in accordance with their terms, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies of creditors, as well as to general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(c) No further consent, approval, permit, license or authorization of any governmental body is required in connection with the execution, delivery and performance of this Agreement by Seller.
(d) Neither Seller nor any Affiliate of Seller has included an examination of all taxemployed any investment banker, financial and legal aspects of broker or finder in connection with the transactions contemplated by this Agreement nor has it taken any action which would give rise to a valid claim against Buyer for a brokerage commission, finder’s fee or other like payment.
(e) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or, to the knowledge of Seller, threatened against or affecting Seller contesting or affecting as to Seller the execution, delivery, validity, performance or enforceability of this Agreement.
(f) To the best of Seller’s knowledge, no event has occurred and is continuing which would constitute, or upon the passage of time or the giving of notice or both could constitute, an Event of Default as to Seller under this Agreement.
Appears in 2 contracts
Sources: Gas Purchase and Sale Agreement, Gas Purchase and Sale Agreement (Intrepid Technology & Resources, Inc.)
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has the full power and authority to execute conduct its business and deliver this Agreement issue the Special Common Shares and to consummate that the transactions to be consummated Special Common Shares are free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon the Common Stock being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for the allotment of the Special Common Shares to Purchaser hereunder, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
E. Seller has full rightconducted its business in compliance with all applicable federal, power state and authority to transfer local laws, regulations and ordinances.
F. Seller has not received any notice that it is infringing upon the Shares to be sold by Seller to the Purchasers as contemplated hereinresearch, free development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) G. There is (and has not been since its inception) no lawsuitclaim, litigation, action, complaintsuit or proceeding, claimadministrative or judicial, demand, notice, hearing, arbitration, investigation, inquiry pending or any other proceedingthreatened against or affecting Seller, at law or in equity or before any administrative foreign, federal, state, local or enforcement agency other governmental authority, including, without limitation, any claim, proceeding, or body (a "Lawsuit") pending litigation for the purpose of enjoining or threatenedpreventing the consummation of this Agreement, affectingor the transactions contemplated hereby, directly or indirectlyotherwise claiming this Agreement, or any of the Shares transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to be sold by Seller and Seller does not know of Seller's knowledge is there any valid basis for upon which any such Lawsuitclaim, litigation, action, suit or proceeding could be brought or initiated. There Seller is no not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction, injunction or decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-any governmental authority, agency and no replevins, attachments, or instrumentality that restricts executions have been issued or are now in force against Seller. No petition in bankruptcy or receivership has ever been filed by or against Seller.
H. Total Sales for the six-month period ending June 30, 2003 are reported to be $4,236,459. Total Assets reported as of June 30, 2003 are $1,461,234. Total Liabilities reported as of June 30, 2003 are $1,455,736. June 30, 2003 Income Statement and Balance Sheet are attached as Schedule A.
I. The net proceeds from the allotment and sale of the Special Common Shares will be used as business development capital for the Seller to build revenues to $20,000,000 annually and EBITDA to the 5% - 7% range during the next three years. However, in no event shall the net proceeds be used by the Seller for the payment (or loaned to any such person for the payment) of any judgment, or other liability, incurred by any executive officer, officer, director or employee of the Seller, except for any liability owed to such person for services rendered, or if any judgment or other liability is incurred by such person originating from consummating services rendered to the transactions contemplated Seller, or the Seller has indemnified such person from liability. Three-year Revenue and EBITDA projections are attached as Schedule B.
J. Seller has taken all corporate action requir▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ution and delivery of this Agreement and the performance of its obligations hereunder, including the issuance and allotment of the Special Common Shares, and this Agreement has been duly executed and delivered by the Seller and constitutes a valid and legally binding obligation of the Seller. When issued to and the first installment is paid for by the Purchaser in accordance with the terms of this Agreement, the Special Common Stock will be duly and validly issued, fully paid and nonassessable, and the issuance of the Special Common Stock will not be subject to any preemptive or similar rights that have not been waived.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary K. The authorized capital stock of the CompanySeller consists of 5,000 shares of Common Stock, par value $.001 per share. The Seller will create, before closing, 1,000 shares of Special Common Stock of the Seller. 1,000 shares of Common Stock and no shares of Special Common Shares have been issued and are outstanding as of the date hereof. All outstanding shares of Common Stock are and will be duly authorized, validly issued, fully paid and non-assessable and not subject to preemptive rights created by statute, the certificate of incorporation or bylaws of the Seller or any agreement to which the Seller is a former executive officer and/or director party or by which it is bound and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid dividends with respect to any shares of Common Stock.
L. Seller shall elect one person from Purchaser to its Board of Directors. Initially Purchaser shall be represented by Frank Clark or Bernard Shinder.
M. Upon the signin▇ ▇▇ ▇▇▇ ▇▇reem▇▇▇, ▇▇▇ ▇▇▇▇▇▇'s two existing Shareholders shall enter into Executive Management Agreements at their current significant stockholder compensation levels.
N. The Individual Shareholders, who are signatories to this Agreement undertake and agree that they will not exercise their powers, whether as directors, officers or shareholders of the Company (to vote their shares so that:
a. Any rights or as an entity controlled by a former executive officer and/or director and current significant stockholder privileges of the Company)Special Common shares shall be changed, so as to altered or amended, and
b. Any further shares of any class shall be able to evaluate allotted or issued without the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all express consent of the Company's filings with the Securities Exchange Commission Buyer first had and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionobtained.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Bio One Corp), Stock Purchase Agreement (Bio One Corp)
Representations and Warranties by Seller. The Seller hereby represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesthat:
(a) Seller Seller’s Board of Directors has authorized the power execution, delivery and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery performance of this Agreement by Seller or and at the consummation Closing, Seller will deliver a copy of such authority to the Buyer, certified by Seller the Secretary of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full rightgood and marketable title to all of the Assets in each case subject to no security interest, power lien, pledge, restriction, charge, claim or encumbrance and authority has the legal authoirty to transfer and convey the Shares to be sold by Seller to the Purchasers as contemplated herein, Assets free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other such claims. Other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict withas set forth in Exhibit “D” hereto, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind no consent of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares authority is required to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, obtained on the Shares part of Seller to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating permit the transactions contemplated by this Agreement.
(c) Other than as set forth in Exhibit “D” hereto Seller has good and marketable title to all the Assets in each case subject to no security interest, lien, pledge, restriction, charge or encumbrance other than those which will be paid or satisfied at Closing. None of the Assets nor the operation or maintenance thereof, contravenes any administrative regulation or any provision of law in such a way as to materially and adversely affect the business or properties of Seller or involves any hazardous materials or waste.
(d) Seller is not in default under any Ownership Agreement or Contract and there have been no claims or defaults and there are no existing facts or conditions which, if continued or upon the giving of notice, will result in any claims or defaults under any Ownership Agreement or Contracts.
(e) Seller has sufficient knowledge and experience with There is no pending litigation or product liability claims relating to the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this AgreementProduct.
(f) The execution, delivery and performance by Seller (and/or Seller's officersof this Agreement, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all consummation of the Company's filings transactions herein contemplated, will not conflict with or result in the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions breach or violation of, and receive answers fromany judgment, representatives order, writ, injunction or decree of the Company and has available to him any domestic court or it such information related to the Company and its businessgovernmental department, prospectscommission, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his board, bureau, agency, or its Sharesinstrumentality, and all investigationsSeller is not in default with respect to any such judgment, due diligenceorder, writ, injunction or decree. No governmental agency has at any time challenged or questioned the legal right or proposed any restriction on the legal right of Seller to produce, manufacture, offer or sell any of its products, including the Product, and questions have been completed services in the present manner or answered to Seller's satisfactionstyle thereof.
(g) Exhibit “E” correctly sets forth a list of all Ownership Agreements, and all patents, patent applications, copyrights, copyright registrations and applications, trademarks, trademark registrations and applications, trade names or commercial names, and any other intangible assets (except for computer programs; industrial models; manufacturing procedures, process and design; assay and control data; and trade secrets, know-how and formulas to manufacture the Product), both domestic and foreign, presently owned, licensed, possessed, used or held by Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or togethercollectively, the merits “Listed Intangibles”) relating to the Product. As of the Closing, Seller will transfer to Buyer all Listed Intangibles and risks all computer programs; industrial models, manufacturing procedures, process and designs; assay and control data; trade secrets, know-how and formulas presently owned by Seller needed and necessary to manufacture the Product as they are currently made (the “Manufacturing Intangibles”). Seller owns the entire right, title and interest in and to the Listed Intangibles and the Manufacturing Intangibles (collectively the “Intangibles”) and there are no computer programs, industrial models, process and designs, trade secrets and know-how not presently owned by Seller needed and necessary to manufacture the Product as it is currently made. Except as set forth herein or on any Exhibit hereto, there are no licenses, sublicenses or grants (including any contractors who manufacture any of selling his the Product) relating to the use of any of the same which are not owned by Seller and none of them so owned are being infringed by others or its Sharessubject to a pending, or threatened challenge of infringement of the rights of others. Seller owns all right, title and interest in all Intangibles needed and necessary for the manufacture of the Product, including but not limited to all formulas and know-how to manufacture the Product. There is no contract manufacturer which has any rights to or ownership interest in any Intangibles needed to manufacture the Product. To Seller’s Knowledge, the conduct of the business of Seller relating to the Assets does not infringe any patent, patent rights, copyright, trademark, trade secret, trade right, trade name, commercial name, trade secret or other intangible assets. On the Closing, all Intangibles shall be transferred and disclosed to Buyer by Seller including those in the possession of manufacturing contractors.
(h) Seller has reviewedis not obligated, among absolutely or contingently, to any person for a finder’s fee, brokerage commission, or other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth similar payment in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of connection with the transactions contemplated by this Agreement, and Seller agrees to indemnify and hold Buyer harmless from any such representation payments or claims for such payments made or threatened.
(i) As exhibited on Exhibit “F” annexed hereto, a physical inventory for the finished goods of the Product was taken by Seller on dates set forth in such Exhibit “F.” The finished goods inventory of Seller on Exhibit “F” hereto, does, and the finished goods inventory of Seller on the Closing (the “Inventory”) will, consist of items of quality which are good, usable and salable in the ordinary course of the business of Seller if Seller had remained in the business of selling the Inventory, has and will as of the Closing have expiration dates of not less than one year from the Closing and is not in any material respect water spotted, torn, physically deteriorated or otherwise damaged. All of the items included an examination in the finished goods inventory (including the Inventory) on the dates such finished goods inventory (including the Inventory) was or will be at the Closing the property of Seller. The Inventory purchased at the Closing shall include only finished goods and shall not include work in process, raw materials, labels, display materials, bottles, bottling caps, packaging, shipping cartons and stickers and other supplies and components necessary to manufacture the Product nor any packaging materials and finished Product. No Inventory of Seller has been placed on consignment.
(j) Set forth on Exhibit “G” annexed hereto is a list of all taxlicenses, financial permits or other authorizations held by Seller from Federal, state or local authorities (except local business licensees), including the Food and legal aspects Drug Administration, and such licenses, permits or other authorizations are the only ones required by Seller to manufacture, offer and sell the Product, and to operate Seller’s facilities (or any manufacturing contractor’s facilities) relating to the Product as currently conducted by Seller (and such contractors) to the extent applicable. There is currently no government action relating to the Product, nor was there any government action for the five (5) years preceding the date of Closing.
(k) Seller will pay all of its own expenses whether or not the transactions contemplated by this Agreementhereto are consummated. Seller will pay all income, franchise, payroll, sales and all other taxes arising out of Seller’s operations prior to and subsequent to Closing.
(l) Attached as (i) Exhibit “H” hereto is a list of active wholesale customers (customers who purchased any Product on or after January 1, 2003), (ii) Exhibit “I” hereto sets is a list of wholesale customers for the Product since January 1, 2002, but who have not purchased products after December 31, 2002, (iii) Exhibit “J” hereto are the customers who do not pay the full list price for the Product and (iv) Exhibit “K” hereto are lists of (A) each current supplier for components of the Product, including individual names and a copy of the last invoice and (B) all previous suppliers since January 1, 2002.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Lee Pharmaceuticals)
Representations and Warranties by Seller. The Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Shares:
(a) Seller represents, warrants, and covenants to Purchaser that:
(i) Seller (1) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware, (2) has the full power and authority to convey the Property and to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution all documents contemplated hereby, (3) has taken all actions and delivery by Seller of this Agreement obtained all consents and approvals required for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(eii) This Agreement constitutes a valid and binding obligation of Seller has sufficient knowledge and experience is enforceable against Seller in accordance with the Company includingits terms except as such enforcement may be limited by applicable bankruptcy, without limitationinsolvency, as a co-founder (reorganization, moratorium or as an entity controlled by a co-founder) other laws of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary general application relating to or affecting enforcement of the Companycreditors' rights generally, and as a former executive officer and/or director the application of equitable principles in any action, legal or equitable. The execution of this Agreement, the delivery of all required documents, the Seller's performance of this Agreement and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated hereby have been duly authorized by this Agreementall requisite action on the part of the Seller.
(fiii) Neither the execution and delivery of, nor the performance under, this Agreement or any other document executed and delivered by the Seller (and/or both contemporaneously herewith or at the Closing) in connection with this transaction is precluded by, will conflict with, result in a breach of or violate, any provision of (1) any existing Federal, state, local or other governmental or quasi-governmental law, statute, ordinance, restriction, rule or regulation, or (2) any judgment, order decree, writ or injunction of any court or governmental department, commission, board, bureau, agency or instrumentality applicable to Seller.
(iv) Schedule 5.1(iv) sets forth all of the leases (collectively "Leases") entered into with respect to the Property, together with all security deposits held by or on behalf of Seller pursuant to any of the Leases. All Leases are in full force and effect in accordance with their respective terms. To the Seller's officersknowledge, directorsno tenant under a Lease has asserted any claim or default or offset against the Seller with respect thereto.
(v) There are no brokerage or leasing commissions which are due and unpaid with respect to any of the Leases.
(vi) All service, executivesmanagement or maintenance contracts (collectively "Contracts") relating to or affecting the Property are set forth in Schedule 5.1(vi) annexed hereto and made a part hereof and true and correct copies of all Contracts, partners and/or principals who including all agreements, amendments, and other documents relating thereto, have been made available to the Purchaser for inspection. All Contracts are acting on in full force and effect in accordance with their respective terms. To the Seller's behalfknowledge, no party to any of the Contracts has asserted any claim or default or offset against the Seller with respect thereto.
(vii) is fully familiar with all facts and circumstances attendant There are no actions, proceedings or other litigation pending or, to Seller's decision knowledge, threatened, with respect to sell the Shares to be sold by Property, the use or operation thereof or the Seller, has reviewed all of as owner thereof, nor are there any outstanding or unpaid judgments against the Company's filings with Seller or affecting the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionProperty.
(gviii) Seller has (is acquiring the Shares for investment purposes only and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as not with a view to be capable of evaluating, alone the resale or together, the merits and risks of selling his or its Sharesdistribution thereof.
(hix) Seller has reviewedTo Seller's knowledge, among other things, there are no pending or threatened condemnation proceedings affecting the Company's Annual Report of Form 10-K Property.
(and its audited financial statements included thereinb) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 Except as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. HoweverSection 5.1(a), Seller specifically understands and agrees that has not made any warranty or representation, express or implied, written or oral, concerning the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future eventsProperty or any uses to which the Property may or may not be put including, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in factbut not limited to, the actual operating results of the Company may prove to be materially different than those forecasted.following:
(i) Seller has been represented by such businessthe condition of title to the Property;
(ii) the nature, legal physical condition or other aspect of the Property;
(iii) the income or expenses generated, paid or incurred in connection with the Property;
(iv) the accuracy of any statements, calculations or conditions stated or set forth in Seller's books and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult records concerning the consummation Property;
(v) the suitability of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects Property for any intended use or development;
(vi) the dimensions of the transactions contemplated by this AgreementProperty or the accuracy of any square footage, sketches or abstracts, revenue or expense projections related to the Property;
(vii) the ability of Purchaser to obtain any and all necessary governmental approvals or permits for Purchaser's intended use and development of the Property; or
(viii) the existence of Hazardous Materials (as defined in Section 5.3(b)) in, on, about, under, or affecting the Property.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) former officer and director of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Connecticut. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that the transactions to be consummated Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") Seller has full rightand for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, power and governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
E. Seller acknowledges that the Assets being transferred per Schedule "A" are owned free and clear of all lienslines and encumbrances, security interestsare not encumbered by any liens or the subject matter of any known or anticipated litigation Seller further acknowledges and agrees that the Purchase Price paid by Purchaser for Sellers' Assets is fair and adequate consideration.
F. Seller has conducted its business in compliance with all applicable federal, chargesstate and local laws, claimsregulations and ordinances.
G. Seller has not received any notice that it is infringing upon the research, pledgesdevelopment, encumbrances processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution and delivery H. Seller is not a party to any written or oral employment, agency or commission agreement with any of its employees that cannot be terminated upon the closing date of this Agreement and the performance and compliance with its terms by Seller will not transaction without penalty. No employee, director, officer or stockholder (ior any current or former family member thereof) conflict withof Seller, either individually or result in the breach ofany other capacity, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute has a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations claim of any kind upon against the Shares to be sold by Seller, whether tangible and Seller has no obligation with respect to such person or intangibleentity, under (A) except the Seller's organizational right to current salary or constituent instrumentswages, if any (includingaccrued vacation pay, without limitation, articles and reimbursable expenses arising in the ordinary course of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and business. Seller does not know of contribute to or sponsor any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree employee welfare or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Companybenefit plans, and as is not subject to any collective bargaining agreement, for employees. I. Seller is a former executive officer and/or director sophisticated investor and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings uncertainties involved with the Securities Exchange Commission and its recent press releases, receipt of restricted common stock. Seller has had an opportunity to ask questions of, discuss the operations of both Xstream and receive answers from, representatives of the Company Purchaser's business with management and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and provided with any requested information. Seller has also reviewed Xstream's filings on the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedSEC EDGAR database located at www.sec.g▇▇.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Xstream Beverage Group Inc)
Representations and Warranties by Seller. The 5.1. Seller represents warrants and warrants the following represent to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the placeStateNevada. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the transactions to be consummated Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. Seller will provide Purchaser prior to closing copies of director and shareholder consents to enter into this Agreement Agreement. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
(b) Seller has full right1. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, power including without limitation all amendments, modifications, and supplements, whether written or oral and for performing Sellers' obligations under the Purchase Documents have been obtained. No consent of any court, governmental agency or other public authority to transfer the Shares to be sold by Seller is required as a condition to the Purchasers as contemplated herein, enforceability of the Purchase Documents.
D. The Assets being transferred per Schedule A are owned free and clear of all liensliens and encumbrances, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests are not encumbered by any lien or the subject matter of any other party whatsoever known or anticipated litigation. Seller has satisfied all conditions required of Seller in connection with the acquisition of the assets from the original owner and Seller has recorded title to the assets with the United State Patent and Trademark Office. Copies of all registrations, whether in the placecountry-regionUnited States or with any nature (other than restrictions imposed foreign jurisdiction are attached hereto. Seller further acknowledges and agrees that the Purchase Price paid by federal or state securities laws)Purchaser for Seller’s Assets is fair and adequate consideration.
(c) The execution and delivery of this Agreement and the performance and E. Seller has conducted its business in compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or nonall applicable placecountry-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or regionU.S. federal, state, and local laws, regulations and ordinances and any laws or regulations of any foreign governmental jurisdiction.
F. Seller has not received any notice that it is infringing upon the research, development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and service marks of any other party.
G. Seller is not a party to any written or quasi-governmental authorityoral employment, agency or instrumentality commission agreement with any of its employees that restricts cannot be terminated upon the closing date of their transaction without penalty. No employee, director, officer or stockholder (or any current or former family member thereof) of Seller, either individually or in any other capacity, has a claim of any kind against the Seller, the Business or the Assets and Seller from consummating the transactions contemplated by this Agreementhas no obligation with respect to such person or entity. Seller does not contribute to or sponsor any employee welfare or benefit plans, and is not subject to any collective bargaining agreement, for employees.
(e) 2. The Seller has sufficient knowledge completed its due diligence on the Purchaser and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate understands the risks and merits of consummating uncertainties involved with the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all receipt of the Company's filings with the Securities Exchange Commission and its recent press releases, Purchaser’s Common Stock. Seller has had an opportunity to ask questions ofdiscuss the operations of Purchaser’s s business, financial condition and receive answers from, representatives affairs with management and has been provided with any requested information. The Seller understands that there is a substantial risk of loss with respect to their investment in the Common Stock of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfactionPurchaser.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Homeland Security Network, Inc.)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, "Sale Discussions"), or (ii) the Company has any current plans or intentions to announce another stock buy back plan ("Second Buy Back Plan"), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended March 31, 2002 2002, June 30, 2002, and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1September 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement and October 15, 2002 and July 16, 2002 earnings releases. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove for the 2002 fourth quarter are currently expected to be materially different more favorable than those previously forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants to Buyers as of the following to each Purchaser in order to induce date hereof and as of the Purchasers to purchase the SharesClosing Date as follows:
(a) Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and has the requisite power and authority to execute and deliver enter into this Agreement and any and all other agreements, instruments, certificates and documents that are expressly required to be executed and/or delivered by the Parties hereby (the “Transaction Documents”), and to consummate the transactions contemplated by the Transaction Documents. The execution, delivery and performance by Seller of each Transaction Document to be consummated which it is a party and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary company action on the part of Seller. The Each Transaction Document to which Seller is a party is, or upon its execution and delivery will be, a valid and binding obligation of Seller, enforceable against it in accordance with the terms thereof except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles (the “Bankruptcy and Equity Exceptions”).
(b) Seller is the sole beneficial and record holder of the Interests, and holds title to the Interests free and clear of any lien (statutory or otherwise), mortgage, pledge, charge, security interest, hypothecation, community property interest, equitable interest, servitude, option, right (including rights of first refusal), restriction (including restrictions on voting, transfer or other attribute of ownership), lease, license, other rights of occupancy, adverse claim, reversion, reverter, preferential arrangement or any other encumbrance in respect of the Interests (each, a “Lien”).
(c) Neither the execution, delivery or performance by Seller of this Agreement and or any Transaction Document to which Seller is a party, nor the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerhereby or thereby, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement nor compliance by Seller or the consummation by Seller with any of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal provisions hereof or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller thereof will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) violate any law, rulestatute, regulation, policy, ruling rule or other interpretation, guideline, circular, judgment, order, decree regulation or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunctioninjunction or decree (“Law”), decree in each case applicable to Seller or other similar command Seller’s assets or directive of properties, or give any court or federal, state, local or foreign governmental or quasi-governmental regulatory agency, commission, bureau, authority, agency court or instrumentality that restricts arbitration tribunal (“Authority”) or other Person (as defined below) the right to challenge any of the transaction contemplated hereby, (ii) with or without the passage of time or the giving of notice or both, result in the breach of, or constitute a default or require any consent under, or result in the creation of any Lien upon the Interests pursuant to any material contract to which such Seller from consummating is a party or by which such Seller or the transactions contemplated by this Agreement.
Interests may be bound or affected, in each case, or (eiii) Seller has sufficient knowledge or violate any provision of the certificate of formation, bylaws and experience with the Company includingoperating agreement, without limitation(or other comparable charter documents), as a co-founder applicable, as each may be amended or restated from time to time (or as an entity controlled by a co-founderthe “Organizational Documents”) of TradeStation SecuritiesSeller or any standing resolution adopted by the managers or members of Seller. “Person” means any individual, Inc.corporation, a Florida corporation that is currently the primary operating subsidiary of the Companylimited liability company, and as a former executive officer and/or director and current significant stockholder of the Company (partnership, joint venture, association, trust, unincorporated organization, governmental entity or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreementany other entity.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Gramercy Property Trust Inc.)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1June 30, 2002 2002, as set forth in well as the Company's Current Report on Form 8-K filed on January 17August 2, 20022002 Proxy Statement. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The 5.1. Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) A. Seller is a corporation duly organized and validly existing under the laws of the State of Florida. Seller has the full power and authority to execute own the Assets and deliver this Agreement conduct its business and to consummate that the transactions to be consummated Assets are owned free and clear of all liabilities of any kind or nature without any liens or encumbrances.
B. The execution, delivery and performance of the Purchase Documents by Seller. The execution and delivery by Seller of this Agreement , and the consummation by Seller of the transactions contemplated hereby, will not with or without the giving of notice or the lapse of time or both:
(i) violate any provision of law, statute, rule or regulation to which Seller is subject,
(ii) violate any judgment, order, writ or decree to which Seller is a party or by this Agreement which it is or may be bound; or
(iii) to the knowledge of Seller, result in the breach of or conflict with any term, covenant, condition or provision of, or result in the modification or termination of, or constitute a default under or result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the Assets being purchased hereunder, under the corporate charter or by-laws or any other agreement, understanding or instrument to which Seller is a party or by which it is or may be bound or affected.
C. All necessary corporate action has been taken by Seller to authorize the execution, delivery and performance of the Purchase Documents. The Purchase Documents have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly authorized, executed and delivered by Seller and is a valid, constitute the valid and binding and obligation of Seller enforceable agreement of and against Sellerit in accordance with their respective terms.
D. All consents and approval required for transferring the Assets to Purchaser hereunder and for assigning the agreements, including without limitation all amendments, modifications, and supplements, whether written or oral (b"Agreements") and for performing Seller's obligations under the Purchase Documents have been obtained or will be obtained. No consent of any court, governmental agency or other public authority is required as a condition to the enforceability of the Purchase Documents.
E. Seller has full rightgood and merchantable title to all Assets and acknowledges that the Assets being transferred per Schedule "A" are not encumbered by any liens or the subject matter of any known or anticipated litigation.
F. To the best of its knowledge Seller has conducted its business in compliance with all applicable federal, power state and authority to transfer local laws, regulations and ordinances.
G. Seller has not received any notice that it is infringing upon the Shares to be sold by Seller to the Purchasers as contemplated hereinresearch, free development, processes, methods, techniques, inventions, know how patents, patent rights, trade name, trademarks and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests service marks of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws)party.
(c) The execution H. Seller has paid all personal and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or intangible property taxes due as a result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board ownership of directors the assets and there are no amounts due and owing for personal property or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Sellerintangible property taxes.
(d) I. There is (and has not been since its inception) no lawsuitclaim, litigation, action, complaintsuit or proceeding, claimadministrative or judicial, demandpending or threatened against or affecting Seller, notice, hearing, arbitration, investigation, inquiry or involving any other proceedingof the Assets, at law or in equity or before any administrative foreign, federal, state, local or enforcement agency other governmental authority, including, without limitation, any claim, proceeding, or body (a "Lawsuit") pending litigation for the purpose of enjoining or threatenedpreventing the consummation of this Agreement, affectingor the transactions contemplated hereby, directly or indirectlyotherwise claiming this Agreement, or any of the Shares transactions contemplated hereby or the consummation thereof, is illegal or otherwise improper, nor to be sold by Seller and Seller does not know of Seller's knowledge is there any valid basis for upon which any such Lawsuitclaim, litigation, action, suit or proceeding could be brought or initiated. There Seller is no not (and has not been within the past three years) subject to or in default under any judgment, order, writ, injunction, injunction or decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-any governmental authority, agency and no replevins, attachments, or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (executions have been issued or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by now in force against Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) except for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller settlement agreement with UPS. No petition in bankruptcy or receivership has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K ever been filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecastedby or against Seller.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller represents and warrants makes only the following representations and warranties to each Purchaser in order to induce the Purchasers to purchase the SharesBuyer:
(a) 3.2.1 Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California.
3.2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Sellerperform its obligations hereunder. The execution and delivery by Seller of this Agreement Agreement, and the consummation performance by Seller of the transactions contemplated by this Agreement its obligations hereunder, have been duly and validly authorized and approved by Seller, and no organizational or other all necessary action on the part of managers and the members of Seller.
3.2.3 This Agreement is binding upon, and enforceable against, Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws affecting creditors' rights generally and by general principles of equity (whether in a proceeding at law or in equity).
3.2.4 Neither the execution or delivery of this Agreement by Seller nor the performance by Seller of its obligations under this Agreement will, conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any contract, lease, license, franchise, permit, indenture, mortgage, deed of trust, note agreement or other agreement or instrument to which Seller is a party or is bound or any judgment, order or decree, statute, law, ordinance, rule or regulation applicable to Seller or the property or assets of Seller (including, without limitation, the Property) or the articles of formation or operating agreement of Seller, or any applicable law or order, except for conflicts, breaches or defaults which would not have a material adverse effect on Seller.
3.2.5 No consent, approval, license, permit, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other person governmental authority or entity instrumentality, domestic or foreign, is necessary required to authorize be obtained or made by or with respect to Seller in connection with the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, hereby.
3.2.6 Seller has good and such representation has included an examination marketable title to all of the Property free and clear of all tax, financial and legal aspects liens of the transactions contemplated by this Agreementany nature.
Appears in 1 contract
Representations and Warranties by Seller. The Seller hereby represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the SharesPurchaser, as follows:
(a) 2.1 Seller has good and marketable title to the Stock, free and clear of all claims, liens, and encumbrances, other than those imposed by this Agreement or securities laws.
2.2 Seller has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions to be consummated by Sellercontemplated hereby. The execution and delivery by Seller of this Agreement and has taken all action necessary for the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Sellerauthorization, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly duly and validly executed and delivered by Seller and is a validconstitutes the legal and binding obligation of Seller, binding enforceable against Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and enforceable agreement other laws of general application affecting enforcement of creditors’ rights generally, and against Seller(ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) 2.3 The execution and delivery of this Agreement by Seller, the performance by Seller of its obligations pursuant to this Agreement, and the performance and compliance with its terms consummation of the transactions contemplated hereby will not result in a breach by Seller will not (i) conflict with, or result in the breach of, violate the terms or trigger or accelerate any right or obligation (including prepayment penalties)conditions of, or constitute a default by Seller under, any agreement, instrument, decree, law, judgment or an event order to which Seller is a party, to which the properties of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of noticeSeller may be subject, or bothby which Seller may be bound, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interestsliens or encumbrances on the Stock, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality than those that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed created by Purchaser or answered to Seller's satisfactionrestrictions imposed by securities laws.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Seller hereby represents and warrants to and for the following to each benefit of the Purchaser in order to induce the Purchasers to purchase the Sharesas follows:
(a) Seller has is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed, with all necessary power and authority to execute and deliver this Agreement Agreement, to perform its obligations hereunder, and to consummate the transactions to Transaction;
(b) This Agreement constitutes when executed and delivered by the Seller a valid and binding obligation of the Seller, is legally binding, and is and will be consummated enforceable in accordance with its terms, except as enforceability may be limited by Seller. applicable bankruptcy, insolvency and other laws and equitable principles affecting creditors’ rights generally and the discretion of the courts in granting equitable remedies;
(c) The execution and delivery by the Seller of this Agreement and the consummation by the Seller of the transactions contemplated by this Agreement have been duly authorized by SellerTransaction, and no organizational or other action on will not constitute (with the part giving of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller notice or the consummation lapse of time or both) a violation of, be in conflict with, result in the acceleration of or entitle any Party to accelerate (whether after the giving of notice or lapse of time or both), or constitute a default under (i) any agreement, commitment or understanding to which the Transferred Interest or the Company is subject or by which it is bound, or (ii) any applicable law;
(d) Seller is the owner of the transactions contemplated by this Agreement. This Agreement Transferred Interest and has been properly as of the Closing Date, title to such Transferred Interest, free and validly executed clear of any and delivered by Seller and is a validall encumbrances, binding and enforceable agreement of and against Seller.liens, claims;
(be) Seller has full rightThe Company will be, power and authority to transfer at the Shares to be sold by Seller to time of Closing, the Purchasers as contemplated hereinfee owner of the Real Property, free and clear of all encumbrances, liens, mortgages, security interests, charges, and claims, pledgesexcept for the Permitted Exceptions;
(f) There is no litigation, encumbrances action, or other proceeding pending or, to the Seller’s Knowledge, threatened (whether such matters are brought at law, in equity or before any administrative agency or other Governmental Authority or instrumentality) relating to the Real Property or the Transferred Interest (except as disclosed to Purchaser);
(g) No broker, agent, consultant or other similar person has assisted the Seller in procuring, negotiating or closing this Transaction. Seller hereby agrees to indemnify and restrictions hold the Purchaser harmless against and rights from all claims, demands, causes of action, judgments, losses, damages, costs or expenses, including attorney’s fees and interests costs (at all trial and appellate court levels) and liabilities which may be asserted or recovered for fees, commissions or other compensation claimed to be due to any broker, finder or intermediary in connection with the Transaction and arising from Seller’s dealings or alleged dealings. This provision shall survive the Closing; (h) Seller represents, except as set forth on Schedule 6.2(h), to Seller’s Knowledge, (i) no site or area improvements have been constructed or installed by any public authority, the cost of which may be assessed in whole or in part against any part of the Real Property; (ii) to Seller’s Knowledge, except for any impact or development fees that may be imposed on the Real Property as a result of Purchaser’s intended development of the Real Property, the Real Property is not subject to the imposition of impact or development fees; and (iii) Seller has not been notified of any other party whatsoever and possible future improvements that might create an assessment against any part of any nature (other than restrictions imposed by federal or state securities laws)the Real Property.
(ci) The execution There is no pending, and delivery Seller has no written notice of any threatened taking or condemnation of the Real Property, or any portion thereof, or any action, litigation or proceeding by any organization, person or governmental agency affecting the Real Property or Seller;
(j) Except as set forth in Schedule 6.2(j), Seller has received no written notice, nor, to Seller’s Knowledge, is Seller in material violation of any law, order, ruling, ordinance, rule or regulation with respect to Seller or the Real Property or the use thereof;
(k) To Seller’s Knowledge, except as set forth in Schedule 6.2(k), during the ▇▇▇▇ ▇▇▇▇▇▇ has owned the Real Property: (i) none of the Real Property has been excavated; (ii) no landfill was deposited on or taken from the Real Property; (iii) no debris or materials (including, without limitation, organic materials, strippings, rocks, stumps or concrete) have been buried upon the Real Property; (iv) the Real Property has not contained a bury or borrow pit; and (v) no wetlands or other protected areas on the Real Property have been filled or altered without a permit from the United States Army Corps of Engineers and/or the St. ▇▇▇▇▇ River Water Management District, as applicable.
(l) Except as set forth in Schedule 6.2(l), to Seller’s Knowledge the Real Property has not been, and is not being, assessed or taxed under any agricultural classification or conservation exemption or similar valuation or program.
(m) Seller has filed all federal, state and local tax returns as required by law with respect to Seller, the Company and the Real Property;
(n) Except as set forth in Schedule 6.2(n), to Seller’s Knowledge, the Real Property has full and free access to and from public streets and/or roads, and Seller has received no written notice of any pending or threatened governmental proceedings or other fact or condition that would limit such access.
(o) There are no attachments, executions, assignments for the benefit of creditors or voluntary or involuntary proceedings in bankruptcy or under any applicable debtor relief laws or any other litigation contemplated by or pending or threatened against Seller or the Real Property;
(p) Except as set forth in Schedule 6.2(p), to Seller’s Knowledge, the Real Property contains no threatened or endangered species or endangered or protected habitats or items of archaeological significance as defined by applicable state and federal laws; (q) There are no unrecorded leases effecting or promised in connection with the Real Property;
(r) To Seller’s Knowledge, there are no cemeteries, grave sites or burial sites located on the Property;
(s) To Seller’s Knowledge, neither Seller nor any prior owner of the Real Property has manufactured or disposed of any Hazardous Substance on the Real Property, or stored or used any such Hazardous Substance on the Real Property in such quantities, concentrations, forms, levels, or otherwise in a manner which is in violation of any applicable environmental laws. To Seller’s Knowledge, the Real Property is in compliance with all environmental laws. Except as set forth in Schedule 6.2(s), Seller has received no written notices from any federal, state or local governmental authority having jurisdiction over the Real Property, to the effect that the Real Property is not in compliance with any of such environmental laws, or that the Real Property is the subject of any federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Substance into the environment from the Real Property. Except as set forth in Schedule 6.2(s), to Seller’s Knowledge, there are no pending actions with respect to the Real Property under any environmental laws. During the Inspection Period, Purchaser shall have the right to enter the Real Property as provided under other provisions of this Agreement to perform such environmental testing at Purchaser’s expense as Purchaser deems necessary to determine the condition of the Real Property. If any contamination or violations of environmental law or other governmental regulations are found, Purchaser will furnish Seller with a copy of the test results and Seller, at Seller’s option, either will, at Seller’s expense, take necessary corrective measures to clean up and comply with applicable environmental laws, regulations and standards without delay in the performance Closing Date or Seller may elect to terminate this Agreement. If so terminated, the Deposit shall be returned to the Purchaser and compliance neither party shall have any further rights or obligations under this Agreement. Seller is under no obligation to Purchaser under this Agreement to clean up or perform any remediation of the Real Property if any contamination or violations of such environmental laws are found on the Real Property. Neither Purchaser nor its agents shall make any reports to any governmental authorities or agencies regarding the environmental condition of the Real Property or any environmental issues and concerns regarding the Real Property without Seller’s prior written consent, unless such reporting is required by law. Nothing in the foregoing representation shall be construed as waiving Purchaser’s obligation to make all appropriate inquiries and to exercise Purchaser’s own due diligence with its terms respect to environmental investigations that Purchaser deems appropriate or any other investigations. Nothing herein is intended to diminish any of Seller’s obligations under applicable law or to impose on Purchaser any of such liabilities of Seller;
(t) To Seller’s Knowledge, the information and materials furnished and to be furnished to Purchaser by Seller, and Seller’s representations and warranties made herein or in connection herewith, are true, complete and accurate and do not omit to include any material information necessary to make the same true or not misleading; (u) Seller will is not a “foreign person” as that term is defined in Internal Revenue Code Section 1445(f)(3), nor is the sale of the Real Property subject to any withholding requirements imposed by the Internal Revenue Code, including, without limitation, Section 1445 thereof; and, at Closing, Seller shall execute and deliver to Purchaser a Non-Foreign Person Affidavit in form reasonably acceptable to Purchaser stating such;
(v) Except as set forth in Schedule 6.2(v), to Seller’s Knowledge: (i) conflict withNo oral or written contract or agreement exists that contains an unperformed obligation or contingent liability relating to the Real Property, including, without limitation, contributions of money or land, and (ii) Seller has not made any commitment or representation to any government authority, or result any adjoining or surrounding property owner, which would in any way be binding on Purchaser;
(w) The existing Purchase Contracts set forth in Schedule 6.2(w) constitute all the breach ofcontracts for the purchase of any portion of the Real Property, and as of the date hereof, Seller is not aware of any default, or trigger or accelerate any right or obligation (including prepayment penalties)an event, or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with except for the passage of time, the time or giving of notice, or both, would become constitute a default, in connection with the existing Purchase Contracts;
(x) Seller is not, and will not be, a person or give rise entity with whom Purchaser is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to any right Intercept and Obstruct Terrorism Act of contingent payment2001, terminationH.R. 3162, cancellationPublic Law 107-56 (commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on Terrorism Financing, acceleration or noneffective September 24, 2001 and regulations promulgated pursuant thereto (collectively, “Anti-renewalTerrorism Laws”), or including without limitation persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List; and
(y) As of the Closing, the Company (i) shall have paid all known outstanding invoices except for those set forth on Schedule 6.2(y) attached hereto, and (ii) result in shall have reserved sufficient sums to pay all accrued invoices and shall cause Seller to promptly pay the creation of any lienssame after Closing as they are received, chargesto the extent they relate to the time period prior to Closing. There are no undisclosed liabilities, rightsobligations, claims, interests, options claims or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder adverse financial conditions of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of not previously disclosed to Purchaser which would cause the Company), so as information previously provided to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove Purchaser to be materially different than those forecastedmisleading.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Consolidated Tomoka Land Co)
Representations and Warranties by Seller. The Seller hereby represents and warrants to Purchaser as of the following to each Purchaser in order to induce the Purchasers to purchase the Sharesdate hereof that:
(a) Seller has is a national banking association, duly organized and validly existing under the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller laws of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part United States of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.America;
(b) Seller has full the legal right, power and authority to transfer enter into this Agreement and perform all of its obligations hereunder, and the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller of its obligation hereunder, (x) has been duly authorized, and (y) will not (i) conflict with, or result in the a breach of, any of the terms, conditions and provisions of its organizational and governance documents or trigger any law, statute, rule or accelerate any right or obligation (including prepayment penalties)regulation, or constitute a default order, judgment, writ, injunction or an event decree of default any court or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of noticegovernmental instrumentality, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument to which it is a party or by which it is bound, or to which it or any portion of its property is subject and (z) except for the consent to the assignment of the Lamppost Agreement and the Revocable Consent Agreement contemplated hereby, will not require the consent, approval, authority or order of any kind whether oral court or writtengovernmental agency that has not been previously obtained in writing or delivered to the Purchaser;
(c) there are no litigations, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authorityadministrative proceedings or arbitrations presently pending or, agency to Seller's actual knowledge, threatened in writing with respect to any of the Property (exclusive of tort and other liability proceeding for which adequate insurance coverage is available, and exclusive of the proceedings, if any, set forth on SCHEDULE 10.1(c) hereto). Purchaser shall have no liability under, or instrumentality any obligation to pursue, such litigation or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.proceedings;
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does has not know received written notice of any valid basis for pending condemnation, eminent domain or similar proceedings with respect to the Property, and has no actual knowledge that any such Lawsuit. There is no judgment, order, writ, injunction, decree proceedings are threatened or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.contemplated;
(e) the fixtures, furniture, furnishings, equipment, machinery and other personal property attached to, appurtenant to or located on the Property and being transferred to Purchaser pursuant to this Agreement (i.e., other than the Excluded Property, which is not being transferred) have been fully paid for and are owned by Seller has sufficient knowledge free and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) clear of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, all liens and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.encumbrances;
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts a true and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all complete list of the Company's filings with the Securities Exchange Commission and its recent press releasesProtest Proceedings, has had an opportunity to ask questions ofif any, and receive answers fromthe law firms or consultants representing the Seller with respect thereto, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans is attached hereto as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.SCHEDULE 10.1(f);
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who there are acting no Leases in effect as of the date hereof except as set forth on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.SCHEDULE 10.1(g);
(h) Seller has reviewed, among other things, not granted any person the Company's Annual Report option or right (including any right of Form 10-K (and its audited financial statements included thereinrefusal) for to purchase the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and changeProperty; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code. Any and all uses of the phrase, "to the best of the Seller's knowledge" or other references to Seller's knowledge in this Agreement shall mean the actual, present, conscious knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Seller Knowledge Individual") as to a fact at the time given without investigation or inquiry. Without limiting the foregoing, Purchaser acknowledges that the Seller Knowledge Individual has been represented by such business, legal not performed and tax counsel and advisors and others, each is not obligated to perform any investigation or review of whom has been personally selected by any files or other information in the possession of Seller, as or to make any inquiry of any persons, or to take any other actions in connection with the representations and warranties of Seller has found necessary to consult concerning set forth in this Agreement. Neither the consummation actual, present, conscious knowledge of any other individual or entity, nor the constructive knowledge of the transactions contemplated by this AgreementSeller Knowledge Individual or of any other individual or entity, and such representation has included an examination of all tax, financial and legal aspects of shall be imputed to the transactions contemplated by this AgreementSeller Knowledge Individual.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Reckson Associates Realty Corp)
Representations and Warranties by Seller. The Seller represents and warrants the following to each the Purchaser in order to induce the Purchasers Purchaser to purchase the Shares:
(a) Seller has the power and authority to execute and deliver this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by Seller and is a valid, binding and enforceable agreement of and against Seller.
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers Purchaser as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (CB) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (DC) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "“Lawsuit"”) pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company)otherwise, so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's ’s decision to sell the Shares to be sold by Seller, has reviewed all of the Company's ’s filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's ’s decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's ’s satisfaction. Seller acknowledges that he has asked an officer of the Company whether (i) the Company is currently in talks with, or is being approached by or seeking to approach, any investment banker or potential purchaser regarding a sale of the company (collectively, “Sale Discussions”), or (ii) the Company has any current plans or intentions to announce another stock buy back plan (“Second Buy Back Plan”), and further acknowledges that the Company officer informed him that there are currently no Sale Discussions and, while a contrary decision may be made in the future depending upon all relevant facts and circumstances, there is no current intention to announce a Second Buy Back Plan.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, evaluating the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's ’s Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report Reports on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed June 30, 2002, as well as the business outlook for the Company for the fiscal year beginning January 1Company’s August 2, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17Proxy Statement and October 15, 20022002 earnings release. However, Seller specifically understands and agrees that the any business outlook information included in any such documents represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties by Seller. The Subject to the Schedules and other agreements in connection with the transactions contemplated herein or as reflected in the financial information provided by Seller to Purchaser, Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the Sharesas of December 31, 2000 (except as otherwise expressly provided), as set forth below:
(a) 5.1. Organization, Existence and Authority of Seller and IPM. Seller and IPM each is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. Seller has the all corporate power and authority to execute execute, deliver and deliver perform this Agreement and the Transaction Documents to be executed and delivered by Seller pursuant hereto and to consummate the transactions contemplated hereby and thereby, subject to be consummated the approval and adoption of those transactions by Sellerthe Special Committee and the shareholders of Venturian. The execution and delivery by Seller of this Agreement and the consummation by Seller of the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize the execution and delivery of this Agreement by Seller or does not, and the consummation by Seller of the transactions contemplated by this Agreement. This Agreement has been properly and validly executed and delivered by hereby will not, violate any provisions of Seller's or IPM's Articles of Incorporation or By-Laws or, to Seller's knowledge, of any law or regulation applicable to Seller and or IPM or of any agreement, mortgage, license, lease, arrangement, instrument, order, arbitration award, judgment or decree to which Seller or IPM is a valid, binding and enforceable agreement of and against Seller.
(b) party or by which Seller has full right, power and authority to transfer the Shares to be sold by Seller to the Purchasers as contemplated herein, free and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement and the performance and compliance with its terms by Seller will not (i) conflict with, IPM is bound or result in the breach of, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any lienslien, chargescharge, rights, claims, interests, options security interest or other encumbrances, restrictions or limitations of any kind upon encumbrance on the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rule, regulation, policy, ruling or other interpretation, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, order, writ, injunction, decree or other similar command or directive of any court or federal, state, local or foreign governmental or quasi-governmental authority, agency or instrumentality that restricts Seller from consummating the transactions contemplated by this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder Assets (or the assets of IPM) other than as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of except that many or all tax, financial and legal aspects of the transactions contemplated contracts, agreements and Performance Obligations to be assigned by Seller to Purchaser and assumed by Purchaser pursuant to this AgreementAgreement are not so assignable and/or assumable without the consent of the other party or parties thereto.
Appears in 1 contract
Representations and Warranties by Seller. The 15.1 Seller represents and warrants the following to each Purchaser in order to induce the Purchasers to purchase the SharesBuyer that:
(a) 15.1.1 Seller has the full power and authority to execute execute, deliver and deliver perform this Agreement and to consummate the transactions to be consummated by Seller. The execution and delivery by Seller of this Agreement and the consummation by Seller of carry out the transactions contemplated by this Agreement have been duly authorized by Seller, and no organizational or other action on the part of Seller or any other person or entity is necessary to authorize hereby;
15.1.2 the execution and delivery of this Agreement by Seller or and the consummation carrying out by Seller of the transactions contemplated hereby have been duly authorized by all requisite corporate action, and this Agreement. This Agreement has been properly and validly duly executed and delivered by Seller and is a validconstitutes the legal, valid and binding obligation of Seller, enforceable against it in accordance with the terms hereof, subject to limitations imposed by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and enforceable agreement general principles of and against Seller.equity;
(b) Seller has full right, power and authority to transfer the Shares to be sold by Seller 15.1.3 to the Purchasers as contemplated hereinbest of Seller's knowledge, free no authorization, consent, approval or order, or notice to or registration, qualification, declaration or filing with, any governmental authority, is required for the execution, delivery and clear of all liens, security interests, charges, claims, pledges, encumbrances and restrictions and rights and interests of any other performance by such party whatsoever and of any nature (other than restrictions imposed by federal or state securities laws).
(c) The execution and delivery of this Agreement or the carrying out by such party of the transactions contemplated hereby;
15.1.4 to the best of Seller's knowledge, none of the execution, delivery and performance by Seller of this Agreement, the compliance with the terms and provisions hereof, and the performance and compliance carrying out of the transactions contemplated hereby, materially conflicts or will conflict with its terms by Seller will not (i) conflict with, or result in a material breach or violation of any of the breach ofterms, conditions, or trigger or accelerate any right or obligation (including prepayment penalties), or constitute a default or an event provisions of default or an occurrence, circumstance, act or failure to act that, with the passage of time, the giving of notice, or both, would become a default, or give rise to any right of contingent payment, termination, cancellation, acceleration or non-renewal, or (ii) result in the creation of any liens, charges, rights, claims, interests, options or other encumbrances, restrictions or limitations of any kind upon the Shares to be sold by Seller, whether tangible or intangible, under (A) the Seller's organizational or constituent instruments, if any (including, without limitation, articles of incorporation, articles of organization, certificate of limited partnership, bylaws, resolutions of the board of directors or shareholders, partnership agreement, operating agreement or shareholders agreement), (B) any contract, understanding, covenant, commitment, understanding, arrangement, or other agreement or instrument of any kind whether oral or written, (C) any law, rulegovernmental rule or regulation or organizational document, regulationas amended, policyor bylaws, ruling or other interpretationas amended, guideline, circular, judgment, order, decree or other directive or advice of any kind of any governmental or quasi-governmental authority, agency or instrumentality or (D) any restriction, condition, covenant or commitment relating to or concerning the Shares to be sold by Seller.
(d) There is no lawsuit, action, complaint, claim, demand, notice, hearing, arbitration, investigation, inquiry Seller or any other proceeding, at law or in equity or before any administrative or enforcement agency or body (a "Lawsuit") pending or threatened, affecting, directly or indirectly, the Shares to be sold by Seller and Seller does not know of any valid basis for any such Lawsuit. There is no judgment, applicable order, writ, injunction, judgment or decree or other similar command or directive of any court or federalgovernmental authority against Seller or by which it or any of its properties is bound, stateor any loan agreement, local indenture, mortgage, bond, note, resolution, contract or foreign other agreement or instrument to which such Seller is a party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or will result in the imposition of any third party lien upon any of its properties; and
15.1.5 there are no legal proceedings, arbitrations, administrative actions or other proceedings by or before any governmental or quasi-governmental authorityregulatory authority or agency, agency now pending or, to the knowledge of Seller, threatened against Seller party or instrumentality any of its subsidiaries that restricts Seller from consummating the transactions contemplated by if adversely determined, could reasonably be expected to have a material adverse effect on Seller's ability to perform its obligations under this Agreement.
(e) Seller has sufficient knowledge and experience with the Company including, without limitation, as a co-founder (or as an entity controlled by a co-founder) of TradeStation Securities, Inc., a Florida corporation that is currently the primary operating subsidiary of the Company, and as a former executive officer and/or director and current significant stockholder of the Company (or as an entity controlled by a former executive officer and/or director and current significant stockholder of the Company), so as to be able to evaluate the risks and merits of consummating the transactions contemplated by this Agreement.
(f) Seller (and/or Seller's officers, directors, executives, partners and/or principals who are acting on Seller's behalf) is fully familiar with all facts and circumstances attendant to Seller's decision to sell the Shares to be sold by Seller, has reviewed all of the Company's filings with the Securities Exchange Commission and its recent press releases, has had an opportunity to ask questions of, and receive answers from, representatives of the Company and has available to him or it such information related to the Company and its business, prospects, affairs and plans as Seller deems necessary and sufficient to make Seller's decision to sell his or its Shares, and all investigations, due diligence, and questions have been completed or answered to Seller's satisfaction.
(g) Seller has (and Seller's officers, directors, executives and/or principals and Seller's representatives, if any, who are acting on Seller's behalf have) such knowledge and experience in financial and business matters so as to be capable of evaluating, alone or together, the merits and risks of selling his or its Shares.
(h) Seller has reviewed, among other things, the Company's Annual Report of Form 10-K (and its audited financial statements included therein) for the fiscal year ended December 31, 2001 and its Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002 and Seller has also reviewed the business outlook for the Company for the fiscal year beginning January 1, 2002 as set forth in the Company's Current Report on Form 8-K filed on January 17, 2002. However, Seller specifically understands and agrees that the business outlook represents only a prediction of future events and is based largely on current expectations and beliefs concerning future events, occurrences and circumstances that are subject to substantial risks, uncertainties and change; accordingly, no assurance can be given that the operating results forecasted will prove to be accurate and, in fact, the actual operating results of the Company may prove to be materially different than those forecasted.
(i) Seller has been represented by such business, legal and tax counsel and advisors and others, each of whom has been personally selected by Seller, as Seller has found necessary to consult concerning the consummation of the transactions contemplated by this Agreement, and such representation has included an examination of all tax, financial and legal aspects of the transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Development and Purchasing Agreement (Comdial Corp)