Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as follows: (a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will use its best efforts to conduct the Offering in a manner intended to be in compliance with the offering procedures set forth in the Offering Circular. Additionally, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasers. (b) The Placement Agent will promptly (and in any event not later than the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes. (c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of another. (d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 2 contracts
Sources: Placement Agent Agreement (First Colebrook Bancorp, Inc.), Placement Agent Agreement (First Colebrook Bancorp, Inc.)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as follows--------------------------------- agrees:
(a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be in compliance with the offering procedures set forth in the Offering Circular. Additionally, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under by the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersCompany.
(b) The To fully disclose to those parties that the Placement Agent will promptly (contacts on the Company's behalf the capacity in which the Placement Agent is contacting them and in any event not later than the next business day after it becomes aware of such information or occurrence) notify Placement Agent's relationship with the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesand to perform all its responsibilities.
(c) The Placement Agent will maintain Subject to the limitations set forth above and in confidence any confidential or proprietary information (“Confidential Information”)compliance with applicable federal and state securities laws, whether oral or written or rules and regulations as well as in electronic or any other formataccordance with applicable rules and regulations of the National Association of Securities Dealers, including financialInc. and NASDAQ, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or shall indemnify and hold harmless the Placement Agent’s agents or learned or observed Company and its affiliates from and against claims relating to any material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents as a consequence of 's gross negligence or willful misconduct, provided that the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company promptly notifies the Placement Agent through sources not known by of any such claim and offers the Placement Agent the opportunity to be under a legal obligation not to disclose the information defend against or is approved for release by written authorization of an Officer settle such claim with counsel of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherAgent's choice.
(d) The That it has been informed of the jurisdictions in which the Company has been advised by counsel acceptable to the Placement Agent that the Units have been qualified or registered for sale or are exempt under the respective securities or "Blue Sky" laws of such jurisdictions; but the Company has not provided and assumed, nor will not provide they assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the purchasers Units in any such jurisdiction. No offer to sell, solicitation of Shares an offer to buy, or sale of Common Stock any written Units in a state or oral information regarding other jurisdiction shall be made by the business Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(e) That it is a broker-dealer properly registered or licensed under applicable federal and securities laws and regulations and under the securities laws and regulations of the Company, states in which the Units will be offered or sold by it and it shall maintain such registration and/or license in full force and effect at all times hereunder.
(f) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective subscriber as required by the Act) and the Securities Exchange Act of 1934 (the "1934 Act").
(g) That neither it nor any person acting for it will give any information or make any representations regarding relating to the Company’s financial condition Company or financial prospectsthe Offering, other than such information as is those contained in the Offering CircularProspectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(h) That it will comply with penny stock procedures set fort▇ ▇▇ the 1934 Act and rules and regulations promulgated thereunder which include (i) determining suitability of the security for each customer, or such other materials as may (ii) obtaining a written agreement from each customer to purchase the security, (iii) setting forth the identity and quantity of the penny stock to be approved purchased and (▇▇) delivering a risk disclosure document to the purchaser prior to the initial transaction in advance by the Companypenny stocks.
Appears in 2 contracts
Sources: Placement Agreement (Searchhelp Inc), Placement Agreement (Searchhelp Inc)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with that:
(a) With respect to any solicitations of offers made on behalf of the Company by the Placement Agent, including any sales persons acting on the Placement Agent's behalf, the Placement Agent represents, warrants and covenants as follows:
(ai) Pursuant The Placement Agent will not offer the Shares by means of any form of general solicitation or general advertising.
(ii) The Placement Agent will cause each person interested in acquiring Shares through the Placement Agent to its appointment made provide to the Company the Subscription Agreement and Confidential Investor Questionnaire appended to the Memorandum, and such information as may reasonably be requested by the Company, to permit the Company to determine whether an investor is qualified to purchase Shares in Section 1 hereofthe Offering. The Shares may be sold only to accredited investors, insofar as that term is defined in Regulation D promulgated under the 1933 Act.
(iii) The Placement Agent will furnish to each offeree through the Placement Agent’s control, concurrently with making any offer to such offeree, a copy of the Memorandum and all supplements or amendments thereto and will sequentially number each Memorandum it furnishes and keep a record of each offeree, their addresses and telephone numbers. The Placement Agent will use not make any representations with respect to the Company or its best efforts to conduct business and affairs other than the Offering in a manner intended to be in compliance with the offering procedures information set forth in the Offering Circular. AdditionallyMemorandum or the sales literature authorized for use in connection with the Offering, or such other information as is specifically authorized in writing by the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersCompany.
(b) The Placement Agent will promptly (comply with the 1933 Act, the 1934 Act and all applicable Blue Sky Laws in any event not later than connection with the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the offering and sale of the Shares, or the suspension of qualification of Shares and will offer the Shares for offering or sale only in any jurisdiction, or those states agreed upon by the initiation or contemplation of any proceeding for such purposesCompany and the Placement Agent.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by promptly inform the Company or the Company’s agents to if the Placement Agent becomes aware of any facts which would cause it to believe that the Memorandum includes any untrue statement of material fact or omits to state any material fact required to be stated therein or necessary to make the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence statements therein not misleading in light of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be circumstances under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherwhich they are made.
(d) The Placement Agent has not provided will timely tender subscription proceeds to the Escrow Agent and will timely provide the Company with copies of all subscription documents it receives in order to enable the Company to determine whether it will accept or reject a subscription.
(e) The Placement Agent will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Companyknowingly make, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circularbad faith, or such other materials through willful misconduct, any untrue statement of a material fact in its capacity as may be approved in advance by the Company.Placement Agent ..
Appears in 2 contracts
Sources: Placement Agent Agreement (Prolung Inc), Placement Agent Agreement (Fresh Medical Laboratories, Inc.)
Covenants of the Placement Agent. The Placement Agent covenants to and agrees with the Company as followsManaging Owner, the Trust and each Fund to:
(a) Pursuant to its appointment made Make a best efforts public offering of the Units as soon as the Placement Agent deems it reasonably advisable on or after the Effective Date (as defined in Section 1 hereof11(a)), insofar as is under upon and subject to the Placement Agent’s control, it will use its best efforts to conduct the Offering terms and conditions contained in a manner intended to be this Agreement and in compliance with the offering procedures set forth in the Offering Circular. Additionallyall applicable securities laws, the Placement Agent will use and to perform all of its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersresponsibilities hereunder.
(b) The Preserve the confidentiality of any proprietary or non-public information or data provided to the Placement Agent will promptly (and in any event not later than by the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesManaging Owner.
(c) The Placement Agent will maintain Fully disclose to prospective subscribers the capacity in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to which the Placement Agent or is contacting them and the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected relationship with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherManaging Owner.
(d) The Not make an offer to sell or solicit an offer to buy or sell Units in a state or other jurisdiction until the Managing Owner has notified the Placement Agent has that the Units have been so registered or qualified, or are exempt from registration or qualification, with the securities authorities in such state or other jurisdiction.
(e) Maintain in full force and effect, and cause its personnel involved in the activities contemplated hereunder to maintain in full force and effect, all governmental, regulatory and self-regulatory registrations, approvals, memberships and licenses required to perform its obligations under this Agreement and to receive compensation therefor (including but not provided limited to registration as a broker-dealer with the SEC, membership in the NASD, registration with the relevant regulatory authority in each state in which the Selling Agent will solicit prospective subscribers, registration with the CFTC as an futures commission merchant or introducing broker and will membership in the NFA) during the term of this Agreement and for such time as the Placement Agent and such personnel shall receive compensation hereunder.
(f) Comply with the applicable requirements of the 1933 Act (including the delivery of a Prospectus to each prospective subscriber as required by the 1933 Act), the Exchange Act, the CE Act, the rules and regulations promulgated thereunder, and the rules and regulations of the NASD, CFTC, and NFA, including, without limitation (i) determining suitability of a purchase of Units for each prospective subscriber through the use of an offeree questionnaire, (ii) obtaining a written agreement from each prospective subscriber to purchase Units setting forth the identity and quantity of the Units to be purchased and (iii) delivering a Prospectus to a prospective subscriber at least five (5) Business Days prior to any purchase of Units.
(g) Not, and not permit any Person acting on its behalf to, (i) provide any information or make any representations relating to the purchasers of Shares of Common Stock Managing Owner, any written Fund, the Trust or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, Offering other than such information as is contained in the Offering CircularProspectus, or (ii) state that it is authorized to act as agent for the Managing Owner, any Fund or the Trust for any purpose other than as expressly set forth in this Agreement.
(h) Not take any of the following actions against the Trust or any Fund: (1) seek a decree or order by a court having jurisdiction in the premises (A) for relief in respect of the Trust or any Fund in an involuntary case or proceeding under the United States Bankruptcy Code or any other federal or state bankruptcy, insolvency, reorganization, rehabilitation, liquidation or similar law, or (B) adjudging the Trust or any Fund bankrupt or insolvent, or seeking reorganization, rehabilitation, liquidation, arrangement, adjustment or composition of or in respect of the Trust or any Fund under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trust or any Fund or of any substantial part of any of their respective properties, or ordering the winding up or liquidation of any of its affairs; (2) seek a petition for relief, reorganization or to take advantage of any law referred to in the preceding clause; or (3) file an involuntary petition for bankruptcy (collectively, a “Bankruptcy or Insolvency Action”).
(i) For any obligations due and owing to it by any Fund, look solely and exclusively to the assets of such other materials as may be approved in advance Fund or the Managing Owner (solely to the extent of the General Units owned by the CompanyManaging Owner in such Fund), if the Managing Owner has liability in its capacity as Managing Owner, to satisfy the Placement Agent’s claims, and not seek to attach or otherwise assert a claim against the other assets of the Trust or any other Fund, whether or not there is a Bankruptcy or Insolvency Action taken. The parties agree that this provision will survive the termination of this Agreement, whether terminated in a Bankruptcy or Insolvency Action or otherwise.
Appears in 2 contracts
Sources: Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund), Placement Agreement (Brookshire Raw Materials (U.S.) Energy USD Fund)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be in compliance with the offering procedures set forth in the Offering Circular. Additionally, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under by the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersCompany.
(b) The To fully disclose to those parties that the Placement Agent will promptly (contacts on the Company's behalf the capacity in which the Placement Agent is contacting them and in any event not later than the next business day after it becomes aware of such information or occurrence) notify Placement Agent's relationship with the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesand to perform all its responsibilities.
(c) The Placement Agent will maintain Subject to the limitations set forth above and in confidence any confidential or proprietary information (“Confidential Information”)compliance with applicable federal and state securities laws, whether oral or written or rules and regulations as well as in electronic or any other formataccordance with applicable rules and regulations of the Financial Regulatory Authority, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or shall indemnify and hold harmless the Placement Agent’s agents or learned or observed Company and its affiliates from and against claims relating to any material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents as a consequence of 's gross negligence or willful misconduct, provided that the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company promptly notifies the Placement Agent through sources not known by of any such claim and offers the Placement Agent the opportunity to be under a legal obligation not to disclose the information defend against or is approved for release by written authorization of an Officer settle such claim with counsel of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherAgent's choice.
(d) The That it has been informed of the jurisdictions in which the Company has been advised by counsel acceptable to the Placement Agent that the Notes have been qualified or registered for sale or are exempt under the respective securities or "Blue Sky" laws of such jurisdictions; but the Company has not provided and assumed, nor will not provide they assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the purchasers Notes in any such jurisdiction. No offer to sell, solicitation of Shares an offer to buy, or sale of Common Stock any written Notes in a state or oral information regarding other jurisdiction shall be made by the business Placement Agent until the Company has notified the Placement Agent that the Notes have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(e) That it is a broker-dealer properly registered or licensed under applicable federal and securities laws and regulations and under the securities laws and regulations of the Company, states in which the Notes will be offered or sold by it and it shall maintain such registration and/or license in full force and effect at all times hereunder.
(f) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective subscriber as required by the Act) and the Securities Exchange Act of 1934 (the "1934 Act").
(g) That neither it nor any person acting for it will give any information or make any representations regarding relating to the Company’s financial condition Company or financial prospectsthe Offering, other than such information as is those contained in the Offering Circular, or such Prospectuses and it is not authorized to act as agent for the Company for any purpose other materials than as may be approved in advance by the Companyexpressly set forth herein.
Appears in 1 contract
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant To make a best efforts public offering of the Units as soon as, on or after the Effective Date of the Registration Statement, as the Placement Agent deems it reasonably advisable so to its appointment made do, at the initial public offering price as provided for in Section 1 hereofthe Prospectus; provided, insofar however, the Placement Agent agrees to be bound by the terms of the Escrow Agreement (the "Escrow Agreement") by ▇▇▇▇▇ Fargo Bank Arizona, National Association (the "Escrow Agent"), as escrow agent, the Placement Agent and the Company, a signed copy of which the Placement Agent acknowledges has been furnished to it by the Manager, and a conformed copy of which is under attached to this Agreement and incorporated herein by this reference.
(b) To fully disclose to prospective investors the Placement Agent’s control's relationship with the Company, and to perform all of its responsibilities.
(c) That it has been informed of the jurisdictions in which the Company has been advised by counsel (acceptable to the Placement Agent) that the Units have been qualified or registered for sale or are exempt under the respective blue sky or state securities laws of such jurisdictions; but the Company has not assumed, nor will it assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the Units in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or sale of Units in a state or other jurisdiction shall be made by the Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(d) That it will offer the Units only to prospective investors who meet (or to those it reasonably believes to meet) the investor suitability set forth in the Prospectus and the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors.
(e) That it is a member of the NASD and is registered as a broker-dealer under the Exchange Act and under the securities laws of the states in which the Units will be offered or sold by the Placement Agent, and it shall maintain such registration in full force and effect at all times hereunder.
(f) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective investor as required by the Act) and the Exchange Act.
(g) That neither it nor any person acting for it will give any information or make any representations relating to the Company or the Offering, other than those contained in the Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(h) To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be the Placement Agent by the Company.
(i) That, subject to the limitations set forth above and in compliance with applicable federal and state securities laws and regulations, as well as in accordance with applicable rules and regulations of the offering procedures set forth in the Offering Circular. AdditionallyNASD, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasers.
(b) The Placement Agent will promptly (shall indemnify and in any event not later than the next business day after it becomes aware of such information or occurrence) notify hold harmless the Company of the issuance by and its affiliates from and against claims relating to any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents as a consequence of 's gross negligence or willful misconduct, provided that the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company promptly notifies the Placement Agent through sources not known by of any such claim and offers the Placement Agent the opportunity to be under a legal obligation not to disclose the information defend against or is approved for release by written authorization of an Officer settle such claim with counsel of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherAgent's choice.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will To use its best efforts to conduct preserve the Offering confidentiality of any proprietary or not publicly available information or data provided to the Placement Agent by the Company.
(b) To fully disclose to those parties that the Placement Agent contacts on the Company's behalf the capacity in a manner intended which the Placement Agent is contacting them and the Placement Agent's relationship with the Company and to be perform all its responsibilities.
(c) Subject to the limitations set forth above and in compliance with applicable federal and state securities laws, rules and regulations as well as in accordance with applicable rules and regulations of the offering National Association of Securities Dealers, Inc. and NASDAQ, the Placement Agent shall indemnify and hold harmless the Company and its affiliates from and against claims relating to any material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent's gross negligence or willful misconduct, provided that the Company promptly notifies the Placement Agent of any such claim and offers the Placement Agent the opportunity to defend against or settle such claim with counsel of the Placement Agent's choice.
(d) That it has been informed of the jurisdictions in which the Company has been advised by counsel acceptable to the Placement Agent that the Units have been qualified or registered for sale or are exempt under the respective securities or "Blue Sky" laws of such jurisdictions; but the Company has not assumed, nor will they assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the Units in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or sale of Units in a state or other jurisdiction shall be made by the Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(e) That it is a broker-dealer properly registered or licensed under applicable federal and securities laws and regulations and under the securities laws and regulations of the states in which the Units will be offered or sold by it and it shall maintain such registration and/or license in full force and effect at all times hereunder.
(f) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective subscriber as required by the Act) and the Securities Exchange Act of 1934 (the "1934 Act").
(g) That neither it nor any person acting for it will give any information or make any representations relating to the Company or the Offering, other than those contained in the Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(h) That it will comply with ▇▇▇▇▇ stock procedures set forth in the Offering Circular. Additionally, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, 1934 Act and rules and regulations promulgated thereunder which duties relate to transmission or maintenance of funds received from potential purchasers.
include (bi) The Placement Agent will promptly (and in any event not later than the next business day after it becomes aware of such information or occurrence) notify the Company determining suitability of the issuance by any courtsecurity for each customer, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending (ii) obtaining a written agreement from each customer to purchase the use security, (iii) setting forth the identity and quantity of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes.
▇▇▇▇▇ stock to be purchased and (civ) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents delivering a risk disclosure document to the Placement Agent or the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available purchaser prior to the public, is otherwise initial transaction in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of another▇▇▇▇▇ stocks.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Covenants of the Placement Agent. (i) The Placement Agent covenants will not accept the subscription of any person unless immediately before accepting such subscription the Placement Agent has reasonable grounds to believe that (A) such person is an "accredited investor," and (B) all representations made and information furnished by such person in the Subscription Agreement and related documents are true and correct in all material respects. The Placement Agent agrees with to notify the Company as follows:promptly if the Placement Agent shall, at any time during the period after delivery of the documents furnished by such person to the Company in connection with subscription for Shares and immediately before the sale of Shares to such person, no longer reasonably believes one or more of the foregoing matters with respect to such person.
(aii) Pursuant to its appointment The Placement Agent will not solicit purchasers of Shares other than in the jurisdictions in which such solicitation may, upon the advice of counsel, be made under applicable securities or "blue sky" laws and in Section 1 hereof, insofar as is under which the Placement Agent’s control, it Agent is qualified so to act.
(iii) The Placement Agent will use its best efforts not sell any Shares to conduct any investor unless a Subscription Agreement is furnished to such investor within a reasonable time prior thereto.
(iv) Upon notice from the Offering in a manner intended Company that the SEC Filings or Executive Summary is to be in compliance with amended or supplemented (which the offering procedures set forth Company will promptly give upon becoming aware of any untrue statement of a material fact stated in the Offering Circular. AdditionallySEC Filings or Executive Summary or omission to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading), the Placement Agent will immediately cease use its best efforts of the SEC Filings or Executive Summary until the Placement Agent has received such amendment or supplement and thereafter will make use of the Executive Summary only as so amended or supplemented, and the Placement Agent will deliver a copy of such amendment or supplement to take all lawful actions necessary each Prospective Investor to fulfill its duties under Rule 15c2-4 under whom a copy of the Exchange Act, which duties relate to transmission SEC Filings or maintenance of funds received from potential purchasersExecutive Summary had previously been delivered (and who had not returned such copy) and whose subscription had not been rejected.
(bv) The Placement Agent will promptly (and in not make any event not later than the next business day after it becomes aware of such information representations or occurrence) notify other statements concerning the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular that are not contained in the SEC Filings or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesExecutive Summary.
(cvi) The Placement Agent will maintain not offer or sell any Shares by means of any form of general solicitation or general advertising, including, without limitation, (A) any advertisement, article, notice or other communication published in confidence any confidential newspaper, magazine or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, marketsimilar medium, or customer data, business techniques broadcast over television or strategies, and/or know-how radio; or (in whatever format such information may exist B) any seminar or shall exist), whether disclosed meeting whose attendees have been invited by the Company general solicitation or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anothergeneral advertising.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Sales Agency Agreement (Cardima Inc)
Covenants of the Placement Agent. (i) The Placement Agent covenants will not accept the subscription of any person unless immediately before accepting such subscription the Placement Agent has reasonable grounds to believe that (A) such person is an "accredited investor," and (B) all representations made and information furnished by such person in the Subscription Agreement and related documents are true and correct in all material respects. The Placement Agent agrees with to notify the Company as follows:promptly if the Placement Agent shall, at any time during the period after delivery of the documents furnished by such person to the Company in connection with subscription for Shares and accompanying Warrants and immediately before the sale of Shares and accompanying Warrants to such person, no longer reasonably believes one or more of the foregoing matters with respect to such person.
(aii) Pursuant to its appointment The Placement Agent will not solicit purchasers of Shares and accompanying Warrants other than in the jurisdictions in which such solicitation may, upon the advice of counsel, be made under applicable securities or "blue sky" laws and in Section 1 hereof, insofar as is under which the Placement Agent’s control, it Agent is qualified so to act.
(iii) The Placement Agent will use its best efforts not sell any Shares and accompanying Warrants to conduct any investor unless a Subscription Agreement is furnished to such investor within a reasonable time prior thereto.
(iv) Upon notice from the Offering in a manner intended Company that the SEC Filings is to be in compliance with amended or supplemented (which the offering procedures set forth Company will promptly give upon becoming aware of any untrue statement of a material fact stated in the Offering Circular. AdditionallySEC Filings or omission to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading), the Placement Agent will immediately cease use its best efforts of the SEC Filings until the Placement Agent has received such amendment or supplement and the Placement Agent will deliver a copy of such amendment or supplement to take all lawful actions necessary each Prospective Investor to fulfill its duties under Rule 15c2-4 under whom a copy of the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersSEC Filings had previously been delivered (and who had not returned such copy) and whose subscription had not been rejected.
(bv) The Placement Agent will promptly (and in not make any event not later than the next business day after it becomes aware of such information representations or occurrence) notify other statements concerning the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or that are not contained in the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesSEC Filings.
(cvi) The Placement Agent will maintain not offer or sell any Shares and accompanying Warrants by means of any form of general solicitation or general advertising, including, without limitation, (A) any advertisement, article, notice or other communication published in confidence any confidential newspaper, magazine or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, marketsimilar medium, or customer data, business techniques broadcast over television or strategies, and/or know-how radio; or (in whatever format such information may exist B) any seminar or shall exist), whether disclosed meeting whose attendees have been invited by the Company general solicitation or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anothergeneral advertising.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Sales Agency Agreement (Cardima Inc)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant To make a best efforts public offering of the Units as soon as, on or after the Effective Date of the Registration Statement, as the Placement Agent deems it reasonably advisable so to its appointment made do, at the initial public offering price as provided for in Section 1 hereofthe Prospectus; provided, insofar however, the Placement Agent agrees to be bound by the terms of the Escrow Agreement executed as of , 2002 (the "Escrow Agreement") by ▇▇▇▇▇ Fargo Bank Arizona, National Association (the "Escrow Agent"), as escrow agent, the Placement Agent and the Company, a signed copy of which the Placement Agent acknowledges has been furnished to it by the Manager, and a conformed copy of which is under attached to this Agreement and incorporated herein by this reference.
(b) To fully disclose to prospective investors the Placement Agent’s control's relationship with the Company, and to perform all of its responsibilities.
(c) That it has been informed of the jurisdictions in which the Company has been advised by counsel (acceptable to the Placement Agent) that the Units have been qualified or registered for sale or are exempt under the respective blue sky or state securities laws of such jurisdictions; but the Company has not assumed, nor will it assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the Units in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or sale of Units in a state or other jurisdiction shall be made by the Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(d) That it will offer the Units only to prospective investors who meet (or to those it reasonably believes to meet) the investor suitability set forth in the Prospectus and the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors.
(e) That it is a member of the NASD and is registered as a broker-dealer under the Exchange Act and under the securities laws of the states in which the Units will be offered or sold by the Placement Agent, and it shall maintain such registration in full force and effect at all times hereunder.
(f) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective investor as required by the Act) and the Exchange Act.
(g) That neither it nor any person acting for it will give any information or make any representations relating to the Company or the Offering, other than those contained in the Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(h) To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be the Placement Agent by the Company.
(i) That, subject to the limitations set forth above and in compliance with applicable federal and state securities laws and regulations, as well as in accordance with applicable rules and regulations of the offering procedures set forth in the Offering Circular. AdditionallyNASD, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasers.
(b) The Placement Agent will promptly (shall indemnify and in any event not later than the next business day after it becomes aware of such information or occurrence) notify hold harmless the Company of the issuance by and its affiliates from and against claims relating to any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents as a consequence of 's gross negligence or willful misconduct, provided that the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company promptly notifies the Placement Agent through sources not known by of any such claim and offers the Placement Agent the opportunity to be under a legal obligation not to disclose the information defend against or is approved for release by written authorization of an Officer settle such claim with counsel of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherAgent's choice.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant To make a best efforts public offering of the Units as soon as, on or after the Effective Date of the Registration Statement, as the Placement Agent deems it reasonably advisable so to its appointment made do, at the initial public offering price as provided for in Section 1 hereof, insofar as is under the Prospectus.
(b) To fully disclose to prospective investors the Placement Agent’s controlrelationship with the Company, and to perform all of its responsibilities.
(c) That it has been informed of the jurisdictions in which the Company has been advised by counsel (acceptable to the Placement Agent) that the Units have been qualified or registered for sale or are exempt under the respective blue sky or state securities laws of such jurisdictions; but the Company has not assumed, nor will it assume, any obligation or responsibility concerning the Placement Agent’s right to act as broker with respect to the Units in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or sale of Units in a state or other jurisdiction shall be made by the Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(d) That it and any Dealers will offer the Units only to persons who meet (or to those it reasonably believes to meet) the financial qualifications set forth in the Prospectus and the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors.
(e) That it and any Dealers are members of the NASD and are registered as a broker-dealers under the Exchange Act and under the securities laws of the states in which the Units will be offered or sold by the Placement Agent, and shall maintain such registration in full force and effect at all times hereunder.
(f) That, in its agreements with Dealers, it will require that Dealers: (i) offer the Units only to persons who meet the financial qualifications set forth in the Prospectus or in any suitability letter or memorandum sent to them by the Placement Agent; (ii) only make offers to persons in the states in which it is advised in writing that the Units are qualified for sale or that such qualification is not required; (iii) comply with the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors; and (iv) provide such certification as Placement Agent may reasonably request regarding its compliance with applicable law.
(g) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective investor as required by the Act) and the Exchange Act.
(h) That neither it nor any person acting for it will give any information or make any representations relating to the Company or the Offering, other than those contained in the Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(i) To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be the Placement Agent by the Company.
(j) That, subject to the limitations set forth above and in compliance with applicable federal and state securities laws and regulations, as well as in accordance with applicable rules and regulations of the offering procedures set forth in the Offering Circular. AdditionallyNASD, the Placement Agent will use shall indemnify and hold harmless the Company and its best efforts affiliates from and against claims relating to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under any material breach by the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasers.
(b) The Placement Agent will promptly (and in any event not later than the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic foregoing covenants or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents gross negligence or learned or observed by willful misconduct, provided that the Company promptly notifies the Placement Agent of any such claim and offers the Placement Agent the opportunity to defend against or settle such claim with counsel of the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherchoice.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC)
Covenants of the Placement Agent. The Placement Agent covenants to and agrees with the Company as followsManaging Owner, the Trust and each Fund to:
(a) Pursuant to its appointment made Make a best efforts public offering of the Units as soon as the Placement Agent deems it reasonably advisable on or after the Effective Date (as defined in Section 1 hereof11(a)), insofar as is under upon and subject to the Placement Agent’s control, it will use its best efforts to conduct the Offering terms and conditions contained in a manner intended to be this Agreement and in compliance with the offering procedures set forth in the Offering Circular. Additionallyall applicable securities laws, the Placement Agent will use and to perform all of its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersresponsibilities hereunder.
(b) The Preserve the confidentiality of any proprietary or non-public information or data provided to the Placement Agent will promptly (and in any event not later than by the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesManaging Owner.
(c) The Placement Agent will maintain Fully disclose to prospective subscribers the capacity in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to which the Placement Agent or is contacting them and the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected relationship with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherManaging Owner.
(d) The Not make an offer to sell or solicit an offer to buy or sell Units in a state or other jurisdiction until the Managing Owner has notified the Placement Agent has that the Units have been so registered or qualified, or are exempt from registration or qualification, with the securities authorities in such state or other jurisdiction.
(f) Maintain in full force and effect, and cause its personnel involved in the activities contemplated hereunder to maintain in full force and effect, all governmental, regulatory and self-regulatory registrations, approvals, memberships and licenses required to perform its obligations under this Agreement and to receive compensation therefor (including but not provided limited to registration as a broker-dealer with the SEC, membership in the NASD, registration with the relevant regulatory authority in each state in which the Selling Agent will solicit prospective subscribers, registration with the CFTC as an futures commission merchant or introducing broker and will membership in the NFA) during the term of this Agreement and for such time as the Placement Agent and such personnel shall receive compensation hereunder.
(e) Comply with the applicable requirements of the 1933 Act (including the delivery of a Prospectus to each prospective subscriber as required by the 1933 Act), the Exchange Act, the CE Act, the rules and regulations promulgated thereunder, and the rules and regulations of the NASD, CFTC, and NFA, including, without limitation (i) determining suitability of a purchase of Units for each prospective subscriber through the use of an offeree questionnaire, (ii) obtaining a written agreement from each prospective subscriber to purchase Units setting forth the identity and quantity of the Units to be purchased and (iii) delivering a Prospectus to a prospective subscriber at least five (5) Business Days prior to any purchase of Units.
(f) Not, and not permit any Person acting on its behalf to, (i) provide any information or make any representations relating to the purchasers of Shares of Common Stock Managing Owner, any written Fund, the Trust or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, Offering other than such information as is contained in the Offering CircularProspectus, or (ii) state that it is authorized to act as agent for the Managing Owner, any Fund or the Trust for any purpose other than as expressly set forth in this Agreement.
(g) Not take any of the following actions against the Trust or any Fund: (1) seek a decree or order by a court having jurisdiction in the premises (A) for relief in respect of the Trust or any Fund in an involuntary case or proceeding under the United States Bankruptcy Code or any other federal or state bankruptcy, insolvency, reorganization, rehabilitation, liquidation or similar law, or (B) adjudging the Trust or any Fund bankrupt or insolvent, or seeking reorganization, rehabilitation, liquidation, arrangement, adjustment or composition of or in respect of the Trust or any Fund under the United States Bankruptcy Code or any other applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Trust or any Fund or of any substantial part of any of their respective properties, or ordering the winding up or liquidation of any of its affairs; (2) seek a petition for relief, reorganization or to take advantage of any law referred to in the preceding clause; or (3) file an involuntary petition for bankruptcy (collectively, a “Bankruptcy or Insolvency Action”).
(h) For any obligations due and owing to it by any Fund, look solely and exclusively to the assets of such other materials as may be approved in advance Fund or the Managing Owner (solely to the extent of the General Units owned by the CompanyManaging Owner in such Fund), if the Managing Owner has liability in its capacity as Managing Owner, to satisfy the Placement Agent’s claims, and not seek to attach or otherwise assert a claim against the other assets of the Trust or any other Fund, whether or not there is a Bankruptcy or Insolvency Action taken. The parties agree that this provision will survive the termination of this Agreement, whether terminated in a Bankruptcy or Insolvency Action or otherwise.
Appears in 1 contract
Sources: Placement Agreement (Brookshire Raw Materials (U.S.) Metals CDN Fund)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be in compliance with the offering procedures set forth in the Offering Circular. Additionally, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under by the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasersCompany.
(b) The To fully disclose to those parties that the Placement Agent will promptly (and contacts on the Company's behalf the capacity in any event not later than which the next business day after it becomes aware of such information or occurrence) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesPlacement Agent is contacting them.
(c) The Placement Agent will maintain That it has been informed of the jurisdictions in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by which the Company or the Company’s agents has been advised by counsel acceptable to the Placement Agent that the Debentures have been qualified or registered for sale or are exempt under the respective securities or "blue sky" laws of such jurisdictions; but the Company has not assumed, nor will they assume, any obligation or responsibility concerning the Placement Agent’s agents 's right to act as broker with respect to the Debentures in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or learned sale of Debentures in a state or observed other jurisdiction shall be made by the Placement Agent or until the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company has notified the Placement Agent through sources not known by that the Placement Agent to be under a legal obligation not to disclose the information Debentures have been so registered or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected qualified or are exempt from registration or qualification with the same degree of care as the Placement Agent uses Securities authority in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit such state or for the benefit of anotherother jurisdiction.
(d) The Placement Agent has That it is a broker-dealer properly registered or licensed under applicable federal securities laws and regulations and under the securities laws and regulations of the states in which the Debentures will be offered or sold by it and it shall maintain such registration and/or license in full force and effect at all times hereunder.
(e) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective subscriber as required by the Act) and the Exchange Act. It is a member of the National Association of Securities Dealers, Inc., and is registered as a broker-dealer under the 1934 Act and under the Securities laws of the states in which the Debentures will be offered or sold by you. It is not provided subject to any order or regulation which in any way relates to any violation of law and it is not committed any act or is subject to any state of fact described in the "bad boy" provisions of any state "blue sky law."
(f) That neither it nor any person acting on its behalf will not provide give any information or make any representations relating to the purchasers of Shares of Common Stock any written Company or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospectsOffering, other than such information as is those contained in the Offering Circular, or Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(g) That it will cause any broker-dealer engaged by it to assist in the distribution of the Debentures to enter into an agreement whereby such other materials as may be approved in advance by broker-dealer agrees and covenants substantially to the Companyeffect of paragraphs 5(c) through (f) above.
Appears in 1 contract
Covenants of the Placement Agent. (i) The Placement Agent covenants will not accept the subscription of any person unless immediately before accepting such subscription the Placement Agent has reasonable grounds to believe and does believe that (A) such person is an accredited investor and (B) all representations made and information furnished by such person in the Subscription Agreement and related documents are true and correct in all material respects. The Placement Agent agrees with to notify the Company as follows:promptly if the Placement Agent shall, at any time during the period after delivery of the documents furnished by such person to the Company in connection with subscription for Shares and immediately before the sale of Shares to such person, no longer reasonably believes one or more of the foregoing matters with respect to such person.
(aii) Pursuant to its appointment The Placement Agent will not solicit purchasers of Shares other than in the jurisdictions in which such solicitation may, upon the advice of counsel, be made under applicable securities or "blue sky" laws and in Section 1 hereof, insofar as is under which the Placement Agent’s control, it Agent is qualified so to act.
(iii) The Placement Agent will use its best efforts not sell any Shares to conduct any investor unless a Memorandum is furnished to such investor within a reasonable time prior thereto.
(iv) Upon notice from the Offering in a manner intended Company that the Memorandum is to be in compliance with amended or supplemented (which the offering procedures set forth Company will promptly give upon becoming aware of any untrue statement of a material fact required to be stated in the Offering Circular. AdditionallyMemorandum or omission to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading), the Placement Agent will immediately cease use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under of the Exchange ActMemorandum until the Placement Agent has received such amendment or supplement and thereafter will make use of the Memorandum only as so amended or supplemented, which duties relate to transmission or maintenance of funds received from potential purchasers.
(b) The and the Placement Agent will promptly deliver a copy of such amendment or supplement to each Prospective Investor to whom a copy of the Memorandum had previously been delivered (and in any event who had not later than the next business day after it becomes aware of returned such information or occurrencecopy) notify the Company of the issuance by any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposesand whose subscription had not been rejected.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to the Placement Agent through sources not known by the Placement Agent to be under a legal obligation not to disclose the information or is approved for release by written authorization of an Officer of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of another.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Covenants of the Placement Agent. The Placement Agent covenants covenants, warrants and agrees with represents, during the Company as followsfull term of this Agreement, that:
(a) Pursuant to its appointment made in Section 1 hereof, insofar as is under the Placement Agent’s control, it will use its best efforts to conduct the Offering in a manner intended to be in compliance with the offering procedures set forth in the Offering Circular. Additionally, the The Placement Agent will use its best efforts has the necessary power and authority to take all lawful actions necessary enter into this Agreement and to fulfill its duties under Rule 15c2-4 under consummate the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchaserstransactions contemplated hereby.
(b) The Placement Agent will promptly (is duly organized, validly existing, and in any event not later than good standing under the next business day after it becomes aware of such information or occurrence) notify the Company laws of the issuance jurisdictions in which it does business. The Placement Agent has the requisite corporate power and authority to execute this Agreement and to perform its duties hereunder, and the execution and delivery by any court, state securities administrator or other agency it of competent jurisdiction of any stop order preventing or suspending this Agreement and the use consummation of the Offering Circular or the sale of the Sharestransactions herein contemplated will not result in any violation of, or the suspension of qualification of the Shares for offering or sale be in any jurisdictionconflict with, or constitute a default under, any agreement or instrument to which the initiation Placement Agent is a party or contemplation of by which the Placement Agent or its properties are bound, or any proceeding for such purposesjudgment, decree, order, or, to its knowledge, any statute, rule or regulation applicable to it.
(c) The Placement Agent will maintain is a member of FINRA and a broker -dealer registered as such under the 1934 Act, and under the securities laws of the states in confidence any confidential which the Shares are to be offered or proprietary information sold.
(“Confidential Information”)d) This Agreement has been duly authorized, whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed and when executed and delivered by the Company or the Company’s agents to the Placement Agent or and the other parties hereto, will be the Placement Agent’s agents or learned or observed legal, valid and binding agreement, enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by the Placement Agent or the Placement Agent’s agents as a consequence of the evaluation of or by reason of being allowed to view the Company’s records(i) bankruptcy, productsfraudulent conveyance, processesinsolvency, reorganization, moratorium, or facilities; providedsimilar laws from time to time in effect and affecting the rights of creditors generally, however, that “Confidential Information” shall not include (ii) limitations upon the power of a court to grant specific performance or any information that is generally available other remedy with respect to the public, is otherwise in the public domain, becomes publicly known through no breach enforcement of this Agreement, is already known (iii) judicial discretion, or becomes known to (iv) the Placement Agent through sources not known by extent that the Placement Agent indemnification provisions of this Agreement are or may be held to be in violation of public policy (under a legal obligation not to disclose either state or federal law) in the information or is approved for release by written authorization of an Officer context of the Company. Confidential Information shall be protected with the same degree offer, offer for sale, or sale of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. securities.
(e) The Placement Agent shall use Confidential Information only for its best efforts to prevent the purpose sale of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit the Shares through persons other than registered FINRA broker-dealers or for the benefit of anotherwith entities exempt from all such registration requirements.
(df) The Placement Agent has not provided shall advise the Broker whenever and will not provide as soon as it receives or learns of any order issued by the SEC, any state regulatory agency or any other regulatory agency that suspends or prevents the offering or sale of the Shares, or receives notice of any proceedings regarding any such order.
(g) The Placement Agent shall use its best efforts to prevent the issuance of any order described herein at subsection (f) hereof and to obtain the lifting of any such order if issued.
(h) The Placement Agent agrees to have in place and adhere to a commercially reasonable program of customer privacy in compliance with applicable laws and industry best practices designed to assure the confidentiality and security of confidential investor information, as required by Regulation S-P and other applicable laws.
(i) The Placement Agent shall give the Broker such number of copies of the Memorandum as the Broker may reasonably request for sale of the Shares.
(j) The Placement Agent shall promptly notify the Broker of any amendments or supplements to the purchasers Memorandum, and shall furnish the Broker with copies of any revised Memorandum and all supplements and/or amendments to the Memorandum.
(k) In conjunction with the Company, on whose behalf Shares are being offered, the Placement Agent shall use its best efforts to cause the Shares to be exempt from registration under the securities laws of Common Stock any written or oral information regarding such states as the business Company shall elect.
(l) No Disqualification Events. With respect to Shares to be offered and sold hereunder in reliance on Rule 506, none of the Company, including any representations regarding director, executive officer, other officers of the Company participating in the offering, any beneficial owner (as that term is defined in Rule 13d-3 under the 1934 Act) of 20% or more of the Company’s financial condition outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Act) connected with the Company in any capacity at the time of sale of any Shares, including the Placement Agent (but, in each case, excluding the Distribution Participant Covered Persons, as defined above, as to whom no representation is made) (each, a “Company Covered Person” and, collectively, “Company Covered Persons”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or financial prospects(d)(3) under the Act. The Company has exercised reasonable care to determine (i) the identity of each person that is a Company Covered Person; and (ii) whether any Company Covered Person is subject to a Disqualification Event. The Placement Agent will notify the Broker in writing, other than such information as is contained in prior to the closing date of the Offering Circularof (i) any Disqualification Event relating to any Company Covered Person and (ii) any event that would, or such other materials as may be approved in advance by with the Companypassage of time, become a Disqualification Event relating to any Company Covered Person.
Appears in 1 contract
Sources: Participating Broker Agreement (CNL Strategic Residential Credit, Inc.)
Covenants of the Placement Agent. The Placement Agent covenants and agrees with the Company as followsagrees:
(a) Pursuant To make a best efforts public offering of the Units as soon as, on or after the Effective Date of the Registration Statement, as the Placement Agent deems it reasonably advisable so to its appointment made do, at the initial public offering price as provided for in Section 1 hereofthe Prospectus; provided, insofar however, the Placement Agent agrees to be bound by the terms of the Amended and Restated Escrow Agreement (the "Escrow Agreement") by ▇▇▇▇▇ Fargo Bank Arizona, National Association (the "Escrow Agent"), as escrow agent, the Placement Agent and the Company, a signed copy of which the Placement Agent acknowledges has been furnished to it by the Manager, and a conformed copy of which is under attached to this Agreement and incorporated herein by this reference.
(b) To fully disclose to prospective investors the Placement Agent’s control's relationship with the Company, and to perform all of its responsibilities.
(c) That it has been informed of the jurisdictions in which the Company has been advised by counsel (acceptable to the Placement Agent) that the Units have been qualified or registered for sale or are exempt under the respective blue sky or state securities laws of such jurisdictions; but the Company has not assumed, nor will it assume, any obligation or responsibility concerning the Placement Agent's right to act as broker with respect to the Units in any such jurisdiction. No offer to sell, solicitation of an offer to buy, or sale of Units in a state or other jurisdiction shall be made by the Placement Agent until the Company has notified the Placement Agent that the Units have been so registered or qualified or are exempt from registration or qualification with the securities authority in such state or other jurisdiction.
(d) That it and any Dealers will offer the Units only to persons who meet (or to those it reasonably believes to meet) the financial qualifications set forth in the Prospectus and the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors.
(e) That it and any Dealers are members of the NASD and are registered as a broker-dealers under the Exchange Act and under the securities laws of the states in which the Units will be offered or sold by the Placement Agent, and shall maintain such registration in full force and effect at all times hereunder.
(f) That, in its agreements with Dealers, it will require that Dealers: (i) offer the Units only to persons who meet the financial qualifications set forth in the Prospectus or in any suitability letter or memorandum sent to them by the Placement Agent; (ii) only make offers to persons in the states in which it is advised in writing that the Units are qualified for sale or that such qualification is not required; (iii) comply with the provisions of Rule 2810 of the Conduct Rules set forth in the NASD Manual, as well as all other applicable rules and regulations relating to suitability of investors; and (iv) provide such certification as Placement Agent may reasonably request regarding its compliance with applicable law.
(g) That it will comply with the applicable requirements of the Act (including the delivery of a Prospectus to each prospective investor as required by the Act) and the Exchange Act.
(h) That neither it nor any person acting for it will give any information or make any representations relating to the Company or the Offering, other than those contained in the Prospectus and it is not authorized to act as agent for the Company for any purpose other than as expressly set forth herein.
(i) To use its best efforts to conduct preserve the Offering in a manner intended confidentiality of any proprietary or not publicly available information or data provided to be the Placement Agent by the Company.
(j) That, subject to the limitations set forth above and in compliance with applicable federal and state securities laws and regulations, as well as in accordance with applicable rules and regulations of the offering procedures set forth in the Offering Circular. AdditionallyNASD, the Placement Agent will use its best efforts to take all lawful actions necessary to fulfill its duties under Rule 15c2-4 under the Exchange Act, which duties relate to transmission or maintenance of funds received from potential purchasers.
(b) The Placement Agent will promptly (shall indemnify and in any event not later than the next business day after it becomes aware of such information or occurrence) notify hold harmless the Company of the issuance by and its affiliates from and against claims relating to any court, state securities administrator or other agency of competent jurisdiction of any stop order preventing or suspending the use of the Offering Circular or the sale of the Shares, or the suspension of qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplation of any proceeding for such purposes.
(c) The Placement Agent will maintain in confidence any confidential or proprietary information (“Confidential Information”), whether oral or written or in electronic or any other format, including financial, commercial, market, or customer data, business techniques or strategies, and/or know-how (in whatever format such information may exist or shall exist), whether disclosed by the Company or the Company’s agents to the Placement Agent or the Placement Agent’s agents or learned or observed material breach by the Placement Agent of the foregoing covenants or any other agreements of the Placement Agent contained in this Agreement or resulting from the Placement Agent’s agents as a consequence of 's gross negligence or willful misconduct, provided that the evaluation of or by reason of being allowed to view the Company’s records, products, processes, or facilities; provided, however, that “Confidential Information” shall not include any information that is generally available to the public, is otherwise in the public domain, becomes publicly known through no breach of this Agreement, is already known or becomes known to Company promptly notifies the Placement Agent through sources not known by of any such claim and offers the Placement Agent the opportunity to be under a legal obligation not to disclose the information defend against or is approved for release by written authorization of an Officer settle such claim with counsel of the Company. Confidential Information shall be protected with the same degree of care as the Placement Agent uses in the protection of its own confidential and proprietary information, but in no case with any lesser degree than reasonable care. The Placement Agent shall not disclose Confidential Information to any third party, except as necessary to fulfill its obligations under this Agreement. The Placement Agent shall use Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall not exploit Confidential Information for its own benefit or for the benefit of anotherAgent's choice.
(d) The Placement Agent has not provided and will not provide to the purchasers of Shares of Common Stock any written or oral information regarding the business of the Company, including any representations regarding the Company’s financial condition or financial prospects, other than such information as is contained in the Offering Circular, or such other materials as may be approved in advance by the Company.
Appears in 1 contract
Sources: Placement Agreement (Usa Capital First Trust Deed Fund LLC)