Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19, 2020, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that: (i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. (b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument. (c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws. (d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act). (f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares. (g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. (h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer. (i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. (j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)). (k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals. (l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Pegasystems Inc), Base Call Option Transaction (Pegasystems Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19July 14, 20202011, between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will (i) conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, (ii) conflict with or result in a breach of any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) conflict with or result in a breach of any agreement or instrument filed as an Exhibit exhibit to the Counterparty’s Annual Report on Form 10-K for the year ended December March 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2011, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument other than, in the case of clause (ii) or clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, and will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(181a(12) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C1a(12)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Electronic Arts Inc.), Call Option Transaction (Electronic Arts Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19June 9, 20202015, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC and Credit Suisse Securities (USA) LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Ironwood Pharmaceuticals Inc), Base Call Option Transaction (Ironwood Pharmaceuticals Inc)
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19May 23, 20202017, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and RBC Capital Markets, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2016, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” ”, as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (ServiceNow, Inc.), Base Call Option Transaction (ServiceNow, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19October 7, 2020, between 2009 among Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇, Incorporated, Barclays Capital Inc., and Deutsche Bank Securities Inc., as representative representatives of the several Initial Purchasers party thereto (the “Initial Purchasers”)thereto, are true and correct and are hereby deemed to be repeated to Dealer JPMorgan on the date hereof and on and as of the Premium Payment Date as if set forth herein. Counterparty hereby further represents and warrants to Dealer JPMorgan on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the this Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, and will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty It is an “eligible contract participant” (as such term is defined in Section 1a(181a(12) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of amended (the Commodity Exchange Act“CEA”)).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the SharesCounterparty.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Avis Budget Group, Inc.), Call Option Transaction (Avis Budget Group, Inc.)
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19November 6, 20202013, between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial PurchasersRepresentative”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2012, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” ”, as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Additional Call Option Transaction (ServiceNow, Inc.), Base Call Option Transaction (ServiceNow, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19April 28, 2020, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC and Credit Suisse Securities (USA) LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliate being financial institutions or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 under the Employee Retirement Income Security Act of 1974, as amended.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents and warrants that Counterparty’s board it has not applied, and shall not, without the consent of directors has authorized Dealer, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy settlement, cancellation or early termination of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
Transaction, apply, for a loan, loan guarantee, direct loan (l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as that term is defined in Rule 10b-18 under the Exchange Coronavirus Aid, Relief and Economic Security Act (the “Rule 10b-18CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of Issuer shall the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if (x) Counterparty either (a) determines based on advice of outside counsel reasonably satisfactory to the Dealer that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects) and (y) on the basis of which Dealer consents to Counterparty’s application for such Restricted Financial Assistance (such consent not to be unreasonably withheld or delayed). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (includinga) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitationlimitation the CARES Act and the Federal Reserve Act, by means of as amended, and (b) requires under such applicable law (or any cash-settled regulation, guidance, interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference to the Transaction or its affiliate, as Counterparty’s agent, described under “Use by general reference to transactions with the attributes of Proceeds” the Transaction in the Offering Memorandumall relevant respects).
Appears in 2 contracts
Sources: Base Call Option Transaction (CNX Resources Corp), Call Option Transaction (CNX Resources Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 1927, 20202019 between Counterparty, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and Barclays Capital Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and (iii) this Confirmation constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) by‑laws of Counterparty, or (ii) any applicable law or regulation, or (iii) any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million50,000,000 as of the date hereof.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be immediately after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 5,183,640 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Liveperson Inc), Base Call Option Transaction (Liveperson Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 11, 20202019, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
: (ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
. (e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Vonage Holdings Corp), Base Call Option Transaction (Vonage Holdings Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 197, 20202019, between among Counterparty and Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth hereinherein except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Counterparty to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) The assets of Counterparty is do not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, constitute “insolventplan assets” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 2 contracts
Sources: Base Call Option Transaction (Tabula Rasa HealthCare, Inc.), Call Option Transaction (Tabula Rasa HealthCare, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 1(a) of the Purchase Underwriting Agreement (the “Purchase Underwriting Agreement”) dated as of February 19January 26, 20202017, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC and ▇▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers Underwriters party thereto (the “Initial PurchasersUnderwriters”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amendedamended (the “CEA”), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange ActCEA).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) . Dealer hereby represents and warrants to Counterparty is not on the date hereof and on and as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, Premium Payment Date that Dealer is an “insolventeligible contract participant” (as such term is defined in Section 101(321a(18) of the U.S. Bankruptcy Code (Title 11 CEA, other than a person that is an eligible contract participant under Section 1a(18)(C) of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)CEA).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Horizon Global Corp), Base Call Option Transaction (Horizon Global Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February November 19, 2020, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial PurchasersPurchaser”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) a. Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) b. In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws bylaws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument (x) filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 or (other than agreements or instruments filed y) that constitutes a “Material Definitive Agreement” (as exhibits pursuant such term is used in Section 1.01 of Form 8-K) and is entered into after December 31, 2019 and prior to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filingsTrade Date, in each case case, to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) c. No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) d. Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) e. Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) f. Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) g. To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) h. Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
i. The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
j. On and immediately after the Trade Date and the Premium Payment Date, (jA) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware).
k. Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or organization a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law, including the Cares Act and the Federal Reserve Act, as amended, and (b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution; provided that Counterparty may apply for any such governmental assistance if Counterparty determines based on the advice of outside counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such governmental assistance based on the terms of the relevant program or facility as of the date of such advice. Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation Sections 42Athe CARES Act and the Federal Reserve Act, 42Bas amended, and 166 (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Companies ▇▇▇ ▇▇▇▇ Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of Bermuda (the “Companies Act”)Transaction in all relevant respects).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (GoPro, Inc.), Base Call Option Transaction (GoPro, Inc.)
Representations and Warranties of Counterparty. (a) Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19December 1, 2020, 2020 between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCLLC and Citigroup Global Markets Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and (iii) this Confirmation constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bc) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or (iii) any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(cd) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(de) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ef) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fg) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To the knowledge of Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million50,000,000 as of the date hereof.
(j) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(k) Counterparty is not as of the Trade Date, and Counterparty shall not be immediately after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 6,879,283 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Liveperson Inc), Base Call Option Transaction (Liveperson Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 1(a) of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19October 2, 20202018, between among Counterparty and Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representation set forth in Section 3(a) of the Agreement, that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) Counterparty is not represents and warrants that it has received, read and understands Dealer’s “Risk Disclosure Statement Regarding OTC Derivatives Products” and acknowledges the terms thereof as if it had signed the Risk Disclosure Statement Verification contained therein as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))date hereof.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Boingo Wireless Inc), Call Option Transaction (Boingo Wireless Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19June 11, 20202013, between Counterparty among Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Barclays Capital Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇ Sachs & Co. LLCCo., as representative representatives of the Initial Purchasers party thereto (the “Initial PurchasersRepresentatives”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December January 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2013, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(i) Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(j) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Base Call Option Transaction (Workday, Inc.), Base Call Option Transaction (Workday, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19April 29, 2020, between among Counterparty and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLCLLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliate being financial institutions or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates affiliate being a financial institution institutions or broker dealerbroker-dealers.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 under the Employee Retirement Income Security Act of 1974, as amended.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents and warrants that Counterparty’s board it has not applied, and shall not, until after the first date on which no portion of directors has authorized the Transaction remains outstanding following any final exercise and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy settlement, cancellation or early termination of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
Transaction, apply, for a loan, loan guarantee, direct loan (l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as that term is defined in Rule 10b-18 under the Exchange Coronavirus Aid, Relief and Economic Security Act (the “Rule 10b-18CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of Issuer shall the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines based on the advice of outside counsel of national standing that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (includinga) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitationlimitation the CARES Act and the Federal Reserve Act, by means of as amended, and (b) requires under such applicable law (or any cash-settled regulation, guidance, interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference to the Transaction or its affiliate, as Counterparty’s agent, described under “Use by general reference to transactions with the attributes of Proceeds” the Transaction in the Offering Memorandumall relevant respects).
Appears in 2 contracts
Sources: Confirmation of Call Option Transaction (Callaway Golf Co), Base Call Option Transaction (Callaway Golf Co)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 6, 2020, 2019 between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) The assets of Counterparty is do not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, constitute “insolventplan assets” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 2 contracts
Sources: Additional Call Option Transaction (Coupa Software Inc), Base Call Option Transaction (Coupa Software Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September 4, 20202019, between among Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCBofA Securities, Inc. and Citigroup Global Markets Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. On or prior to the Premium Payment Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors (together, if applicable, with the resolution of the pricing committee established by the board in connection with the Transaction) authorizing this Transaction.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation Confirmation, nor the payment of the Premium on the Premium Payment Date, nor the incurrence or performance of obligations of Counterparty hereunder hereunder, nor the consummation of this Transaction by Counterparty will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or (iii) any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of a U.S. domestic issuers incorporated corporation listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(h) Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with this Transaction, Dealer or its affiliates is acting as principal and is not a fiduciary or advisor in respect of this Transaction, including any entry, exercise, amendment, unwind or termination thereof.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as Without limiting the generality of Section 13.1 of the Trade DateEquity Definitions, and Counterparty shall not be after giving effect acknowledges that neither Dealer nor any of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) treatment of the U.S. Bankruptcy Code Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)any successor issue statements).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws acknowledges and agrees to deliver to Dealer a copy be bound by the Conduct Rules of the resolutions of Counterparty’s board of directors covering Financial Industry Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the foregoing authorization position and approvalsexercise limits set forth therein.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Aerie Pharmaceuticals Inc), Base Call Option Transaction (Aerie Pharmaceuticals Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase AgreementAgreement ”) dated as of February 19September 4, 20202019, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC, Citigroup Global Markets Inc. and ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “‘insolvent” ’ (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “‘Bankruptcy Code”’)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior Counterparty has (and shall at all times during the Transaction have) the capacity and authority to invest directly in the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized Shares underlying the Transaction and approved has not entered into the Transaction with the intent to avoid any regulatory filings.
(n) Counterparty’s financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees portion thereof to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalssatisfy any existing or contemplated undertaking or indebtedness.
(lo) On Counterparty’s investments in and liabilities in respect of the Trade DateTransaction, neither Issuer nor which it understands are not readily marketable, are not disproportionate to its net worth, and Counterparty is able to bear any “affiliate” loss in connection with the Transaction, including the loss of its entire investment in the Transaction.
(p) Counterparty understands, agrees and acknowledges that Dealer has no obligation or “affiliated purchaser” intention to register the Transaction under the Securities Act, any state securities law or other applicable federal securities law.
(each as defined in q) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 10b-18 13e-1 or Rule 13e-4 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering MemorandumAct.
Appears in 2 contracts
Sources: Base Call Option Transaction (Zillow Group, Inc.), Base Call Option Transaction (Zillow Group, Inc.)
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that, as of the date hereof, each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19April 21, 2020, 2020 between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto initial purchasers (the “Initial Purchasers”)) party thereto, are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty Counterparty; and (iii) constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2019, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amendedamended (the “CEA”), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange ActCEA).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act Counterparty is not aware of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no any state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares that would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) Counterparty is not a “qualified institutional buyer” as defined in Rule 144A under the Securities Act or an “accredited investor” as defined in Section 2(a)(15)(ii) of the Trade Date, and Counterparty shall Securities Act.
(j) The assets used in the Transaction (1) are not be after giving effect to the transactions contemplated hereby, assets of any “insolventplan” (as such term is defined in Section 101(324975 of the U.S. Internal Revenue Code (the “Code”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to Title I of ERISA, and (2) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section ▇▇▇▇-▇-▇▇▇.
(k) On and immediately after each of the Trade Date and the Premium Payment Date, (A) the Counterparty will not be insolvent or rendered insolvent, left with unreasonably small capital or intend to incur debts beyond its ability to pay its debts as they mature, as these concepts are used in Section 548(a)(1)(B) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (B) the Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws Section 160 of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 General Corporation Law of the Companies ▇▇▇ ▇▇▇▇ State of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsDelaware.
(l) On Counterparty shall promptly provide written notice to Dealer upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default, a Potential Event of Default, a Potential Adjustment Event, a Merger Event or any other Extraordinary Event; provided, however, that should Counterparty be in possession of material non-public information with respect to Counterparty or the Shares, Counterparty shall not communicate such information to Dealer.
(m) Counterparty has (and shall at all times during the Transaction have) the capacity and authority to invest directly in the Shares underlying the Transaction and has not entered into the Transaction with the intent to avoid any regulatory filings.
(n) Counterparty’s financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness.
(o) Counterparty’s investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and Counterparty is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction.
(p) Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to register the Transaction under the Securities Act, any state securities law or other applicable federal securities law.
(q) Counterparty’s filings under the Securities Act, the Exchange Act or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(r) Counterparty understands, agrees and acknowledges that no obligations of Dealer to Counterparty hereunder shall be entitled to the benefit of deposit insurance and that such obligations shall not be guaranteed by any affiliate of Dealer or any governmental agency.
(s) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Issuer Dealer nor any “affiliate” of its affiliates is making any representations or “affiliated purchaser” (each as defined in Rule 10b-18 warranties or taking any position or expressing any view with respect to the treatment of the Transaction under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (includingany accounting standards including ASC Topic 260, without limitationEarnings Per Share, by means of any cash-settled or other derivative instrument) purchaseASC Topic 815, offer to purchase, place any bid or limit order that would effect a purchase ofDerivatives and Hedging, or commence any tender offer relating toASC Topic 480, any Shares Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging - Contracts in Entity’s Own Equity (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository shareany successor issue statements) or any security convertible other accounting guidance.
(A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or exchangeable proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or exercisable for Shares, except for oral) of Dealer or any privately negotiated repurchase of Shares effected through one its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Initial Purchasers Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Dealer or any of its affiliateaffiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.
(u) Counterparty has not entered into any obligation that would contractually limit it from effecting settlement under the Transaction and it agrees not to enter into any such obligation during the term of the Transaction.
(v) Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the Term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law, including the Cares Act and the Federal Reserve Act, as Counterparty’s agentamended, described under “Use and (b) requires, as a condition of Proceeds” such loan, loan guarantee, direct loan (as that term is defined in the Offering MemorandumCares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty.
Appears in 2 contracts
Sources: Base Call Option Transaction (INPHI Corp), Call Option Transaction (INPHI Corp)
Representations and Warranties of Counterparty. (a) Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19December 1, 2020, 2020 between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCLLC and Citigroup Global Markets Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and (iii) this Confirmation constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bc) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) bylaws of Counterparty, or (ii) any applicable law or regulation, or (iii) any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(cd) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(de) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ef) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fg) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To the knowledge of Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million50,000,000 as of the date hereof.
(j) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(k) Counterparty is not as of the Trade Date, and Counterparty shall not be immediately after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 6,879,283 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 2 contracts
Sources: Call Option Transaction (Liveperson Inc), Base Call Option Transaction (Liveperson Inc)
Representations and Warranties of Counterparty. Each As of the date hereof, Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19January 8, 20202015, between Counterparty among Counterparty, ▇▇▇▇▇ Fargo Securities, LLC and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative representatives of the several Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31November 1, 2019 2014 to which Counterparty or any of its subsidiaries is a party (other than agreements excluding any employment or instruments management contracts or compensatory plan, contracts or arrangements filed as exhibits pursuant to or incorporated by reference in accordance with Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) Each of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty it and its affiliates is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(if) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Brocade Communications Systems Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August [__], 20202025, between Counterparty among Counterparty, [_____], [_____] and ▇▇▇▇▇▇▇ Sachs & Co. LLC[_____], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(hvii) To the knowledge of Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) [Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 millionmillion.]15
(ix) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(jx) Counterparty is not as On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions contemplated herebyTransaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner described in the offering memorandum relating to the sale of the Convertible Notes and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy Corporation Law of the resolutions State of Counterparty’s board of directors covering the foregoing authorization and approvalsDelaware). 15 Include for dealers requiring a FINRA institutional suitability rep.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Upstart Holdings, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 1928, 20202023, between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, Credit Suisse Securities (USA) LLC and Truist Securities, Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliate being financial institutions or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 under the Employee Retirement Income Security Act of 1974, as amended.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty represents and warrants that it has not applied, and shall not, without the consent of Dealer, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided that Counterparty may apply for Restricted Financial Assistance if (x) Counterparty either (a) determines based on advice of outside counsel reasonably satisfactory to the Trade Date, Dealer that the terms of the Transaction would not cause Counterparty represents to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects) and (y) on the basis of which Dealer consents to Counterparty’s board application for such Restricted Financial Assistance (such consent not to be unreasonably withheld or delayed). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of directors has authorized the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction and approved (either by specific reference to the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees or by general reference to deliver to Dealer a copy transactions with the attributes of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsTransaction in all relevant respects).
(l) On [Counterparty has received, read and understands the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect OTC Options Risk Disclosure Statement and a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one copy of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Use Characteristics and Risks of Proceeds” in the Offering Memorandum.Standardized Options”.]16
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September 13, 20202021, between among Counterparty and G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC, J.▇. ▇▇▇▇▇▇ Securities LLC and O▇▇▇▇▇▇▇▇▇▇ Sachs & Co. LLCInc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) It and any of its subsidiaries has not applied, and shall not, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that Counterparty comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that Counterparty has not, as of the date specified in the condition, made a capital distribution or will not make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty or any of its subsidiaries may apply for Restricted Financial Assistance if Counterparty either (a) determines based on the advice of outside counsel of national standing that the terms of the Transaction would not cause Counterparty or any of its subsidiaries to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects).
(k) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19September 12, 20202017, between Counterparty among Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative representatives of the Initial Purchasers party thereto (the “Initial PurchasersRepresentatives”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December January 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2017, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(i) Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(j) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19August [ ], 20202019, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLCLLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2018, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant,” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not as of has received, read and understands the Trade Date, OTC Options Risk Disclosure Statement provided by Dealer and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvalsStandardized Options”.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 2 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19November 14, 20202017, between among Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCBarclays Capital Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as representative representatives of the Initial Purchasers initial purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (A) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (B) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (C) any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except for any such conflicts, breaches, defaults or lien creations in the cases of clause (C) above that would not adversely affect the ability of Counterparty to fulfill its obligations under this Transaction.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fv) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.Shares.13
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ivi) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 USD50 million.
(jvii) Counterparty is not as of has received, read and understands the Trade Date, OTC Options Risk Disclosure Statement provided by Dealer and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvalsStandardized Options”.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Rambus Inc)
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 1913, 20202014, between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial PurchasersRepresentative”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2012, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant,” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May 21, 2020, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will (i) conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) conflict with or result in a breach of any applicable law or regulation, or (iii) conflict with or result in a breach of any order, writ, injunction or decree of any court or governmental authority or agency, or (iv) conflict with or result in a breach of any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that Counterparty’s board it has not applied, and throughout the term of directors has authorized the Transaction shall not, apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act)) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility (collectively, “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and approved the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution (such Financial Assistance, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and would not cause Counterparty to fail to satisfy any related hedging activity condition for purposes application for or receipt or retention of Chapter 110F such Financial Assistance based on the terms of Massachusetts General Laws and agrees to deliver the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a copy governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade DateDate or subsequently enacted, neither Issuer nor adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (includingregulation, without limitationguidance, by means of any cash-settled interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference to the Transaction or its affiliate, as Counterparty’s agent, described under “Use by general reference to transactions with the attributes of Proceeds” the Transaction in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 2, 2020, 2021 between Counterparty and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Trade Date and the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date (or such other date as specified below) that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal applicable Canadian and United States federal, provincial or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or United States state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any Canadian or other non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding (i) any such requirement that is applicable generally to the ownership of of, or transactions in, common equity securities of a U.S. domestic issuers incorporated corporation listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On each of the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not, or will not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated herebybe, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares hereunder in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied for, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s board , and that it has not, as of directors has authorized the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and approved would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence of a waiver or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees is permitted under such program or facility (either by specific reference to deliver the Transaction or by general reference to Dealer a copy transactions with attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of directors covering a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the foregoing authorization and approvalspurchase of this Transaction (either by specific reference to this Transaction or by general reference to transactions with the attributes of this Transaction in all relevant respects).
(l) On Counterparty understands and acknowledges that, in the Trade Date, neither Issuer nor event the entering into the Transaction is construed by any securities regulatory body with competent jurisdiction as a purchase or sale of a “affiliatesecurity” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Securities Act (“Rule 10b-18”)Ontario) of Issuer shall directly or indirectly (including, without limitation, by means and/or the securities legislation of any cashother province or territory of Canada, such security will not have been qualified for distribution by way of prospectus pursuant to the Securities Act (Ontario) and/or the securities laws of any other province or territory of Canada and, therefore, could not (in the event of such construction) be sold, pledged, hypothecated, transferred or otherwise disposed of unless an exemption from the requirements thereof is available.
(m) Counterparty is an “accredited investor” as defined in National Instrument 45-settled 106 – Prospectus Exemptions.
(n) The exercise or deemed exercise of any Option hereunder and the delivery of Shares to the Counterparty upon such exercise or deemed exercise of any Option hereunder (in each case whether at maturity, upon early termination or cancellation or otherwise) shall not constitute an “issuer bid” as such term is defined in National Instrument 62-104 – Take-Over Bids and Issuer Bids.
(o) For purposes of disclosure pursuant to the Interest Act (Canada), as amended, restated, replaced or re-enacted from time to time, the parties hereto acknowledge that the yearly rate of interest to which any rate of interest or other derivative instrumentamount payable under this Agreement, which is to be calculated on the basis of a number of days that is less than a full calendar year, is equivalent may be determined by multiplying such rate by a fraction, the numerator of which is the actual number of days in the calendar year in which such yearly interest is to be ascertained and the denominator of which is the number of days comprising such other basis.
(p) purchase, offer to purchase, place any bid or limit order that would effect The Counterparty is a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit non-resident of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable Canada for Shares, except for any privately negotiated repurchase of Shares effected through one purposes of the Initial Purchasers Income Tax Act (Canada) and any applicable tax treaty or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumconvention.
Appears in 1 contract
Sources: Base Call Option Transaction (Ceridian HCM Holding Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 2, 20202021, between Counterparty by and among Counterparty, Citigroup Global Markets Inc., and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLC, Securities LLC as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31March 28, 2019 2020 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) Counterparty’s total assets would be greater than the sum of its total liabilities plus the amount that would be needed, if Counterparty were to be dissolved at such time, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its existing and reasonably foreseeable debts, liabilities and obligations, whether or not liquidated, matured, asserted or contingent, as they become due in the usual course of business and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 the solvency requirements of Chapter 156D of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)Massachusetts General Laws).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
(m) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 2, 20202021, between Counterparty by and among Counterparty, Citigroup Global Markets Inc., and J.▇. ▇▇▇▇▇▇ Sachs & Co. LLC, Securities LLC as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31March 28, 2019 2020 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) Counterparty’s total assets would be greater than the sum of its total liabilities plus the amount that would be needed, if Counterparty were to be dissolved at such time, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its existing and reasonably foreseeable debts, liabilities and obligations, whether or not liquidated, matured, asserted or contingent, as they become due in the usual course of business and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 the solvency requirements of Chapter 156D of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)Massachusetts General Laws).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
(m) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19December 14, 2020, between Counterparty and among Counterparty, M▇▇▇▇▇ S▇▇▇▇▇▇ Sachs & Co. LLC, BofA Securities, Inc., J.P., M▇▇▇▇▇ Securities LLC and G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(hvii) To the knowledge of Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions contemplated herebyTransaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner described in the offering memorandum relating to the sale of the Convertible Notes and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Zynga Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 17, 2020, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and Citigroup Global Markets Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial PurchasersPurchaser”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law, including the Cares Act and the Federal Reserve Act, as amended, and (b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty. Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s board “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of directors has authorized the Trade Date or subsequently enacted, adopted or amended), including without limitation the Cares Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction and approved (either by specific reference to the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees or by general reference to deliver to Dealer a copy transactions with the attributes of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsTransaction in all relevant respects).
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Allegheny Technologies Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March [•], 2020, 2021 between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC, LLC as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding (i) any such requirement that is applicable generally to the ownership of of, or transactions in, common equity securities of a U.S. domestic issuers incorporated corporation listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On each of the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not, or will not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated herebybe, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares hereunder in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied for, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s board , and that it has not, as of directors has authorized the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and approved would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence of a waiver or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees is permitted under such program or facility (either by specific reference to deliver the Transaction or by general reference to Dealer a copy transactions with attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade DateDate or subsequently enacted, neither Issuer nor adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (includingregulation, without limitationguidance, by means of any cash-settled interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer that such funds be used for specified or enumerated purposes that do not include the purchase of this Transaction (either by specific reference to purchase, place any bid this Transaction or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit by general reference to transactions with the attributes of beneficial interest this Transaction in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[__________], 2020, between Counterparty and J.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as of the date hereof and as of the Premium Payment Date as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, bound or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the Term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade DateDate or subsequently enacted, adopted or amended), including without limitation the Cares Act and the Federal Reserve Act, as amended, and Counterparty shall not be after giving effect to the transactions contemplated hereby(b) requires under applicable law (or any regulation, “insolvent” guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as such that term is defined in Section 101(32) the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the U.S. Bankruptcy Code (Title 11 date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the United States Codedate specified in such condition, made a capital distribution or will not make a capital distribution. Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares whether in compliance with the laws existence as of the jurisdiction of Counterparty’s incorporation Trade Date or organization (subsequently enacted, adopted or amended), including without limitation Sections 42Athe Cares Act and the Federal Reserve Act, 42Bas amended, and 166 (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the Companies ▇▇▇ ▇▇▇▇ purchase of Bermuda this Transaction (either by specific reference to this Transaction or by general reference to transactions with the “Companies Act”)attributes of this Transaction in all relevant respects).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Underwriting Agreement (the “Purchase Underwriting Agreement”) dated as of February 19June 4, 2020, 2009 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, Wachovia Capital Markets, LLC and Credit Suisse Securities (USA) LLC as representative of the Initial Purchasers Underwriters party thereto (the “Initial PurchasersUnderwriters”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date as if set forth herein. Counterparty hereby further represents and warrants to Dealer that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the this Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, and will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty It is an “eligible contract participant” (as such term is defined in Section 1a(181a(12) of the Commodity Exchange Act, as amendedamended (the “CEA”)) because one or more of the following is true: Counterparty is a corporation, partnership, proprietorship, organization, trust or other than entity and:
(A) Counterparty has total assets in excess of USD 10,000,000;
(B) the obligations of Counterparty hereunder are guaranteed, or otherwise supported by a person that is letter of credit or keepwell, support or other agreement, by an eligible contract participant under entity of the type described in Section 1a(18)(C1a(12)(A)(i) through (iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or 1a(12)(C) of the Commodity Exchange Act)CEA; or
(C) Counterparty has a net worth in excess of USD 1,000,000 and has entered into this Agreement in connection with the conduct of Counterparty’s business or to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by Counterparty in the conduct of Counterparty’s business.
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the SharesCounterparty.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized entering into the Transaction for bona fide business purposes and approved the Transaction and any related hedging activity not for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsspeculative purposes.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19January 25, 20202016, between Counterparty among Counterparty, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein, except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Company to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate Certificate of incorporation Incorporation or bythe Amended and Restated By-laws Laws of Counterparty (or any equivalent documents), (ii) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to CounterpartyCompany’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 2014 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case ) to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on (x) Counterparty and its subsidiaries, taken as a whole, (y) Dealer’s rights or obligations relating to the Transaction, or (z) the power or ability of Counterparty to execute and deliver this Confirmation or perform its obligations hereunder.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under The documents incorporated by reference in the Securities ActOffering Memorandum, when they were filed with the U.S. Securities Exchange Act of 1934, as amended Commission (the “Commission”) conformed in all material respects to the requirements of the Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of and the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission Offering Memorandum does not contain any untrue statement of a material fact required or omit to be stated therein or state a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities Shares except for the reporting requirements of U.S. domestic issuers listed on the ExchangeExchange Act and the rules promulgated thereunder; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations as of the date hereof are not guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 26,427,834 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized register the Transaction and approved under the Transaction and Securities Act, any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsstate securities law or other applicable federal securities law.
(ln) On Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering MemorandumAct.
Appears in 1 contract
Representations and Warranties of Counterparty. (a) Each of the representations and warranties of Counterparty set forth in Section 1 [4] of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[September 5], 20202018, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[__], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) : Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2017, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To Counterparty’s knowledge, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty Each of it and its affiliates is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million. US-DOCS\102978043.13
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not acknowledges that the board of directors of Counterparty has granted the approval necessary to cause the restrictions set forth in Section 203 of the Delaware General Corporation Law (the “Business Combinations Statute”) to be inapplicable to the Transaction, including, without limitation, transactions in, or linked to, Counterparty’s securities to be effected by Dealer in connection with hedging the Transaction, and as a result neither Dealer nor any of its affiliates or associates shall be subject to the restrictions in the Business Combinations Statute as an “interested stockholder” of Counterparty by virtue of (i) its entry into the Transaction or (ii) any act that Dealer may take in furtherance of the Transaction (including without limitation the hedging transactions to be effected by Dealer or its affiliates in connection with the Transaction, whether in Shares or transactions that references the Shares) or (iii) its purchase of, as the case may be, and/or marketmaking in, the Convertible Notes.
(k) On each of the Trade Date and the Premium Payment Date, and Counterparty shall is not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the The representations and warranties of Counterparty set forth in Section 1 Article VII of the Purchase Textron Inc. Underwriting Agreement Standard Provisions (Debt), dated as of April 29, 2009, and incorporated by reference into the Underwriting Agreement (the “Purchase Underwriting Agreement”) ), dated as of February 19April 29, 20202009, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇, Sachs & Co. LLCCo., as representative representatives of the Initial Purchasers underwriters party thereto (the “Initial PurchasersUnderwriters”), are true and correct and are hereby deemed to be repeated to Dealer Bank as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Bank that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, generally and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought considered in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or (to the extent such agreement is material to Counterparty and its subsidiaries taken as a whole) any of its subsidiaries is a party or by which Counterparty or (to such extent) any of its subsidiaries is boundbound or to which Counterparty or (to such extent) any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty It is an “eligible contract participant” (as such term is defined in Section 1a(181(a)(12) of the Commodity Exchange Act, as amended.
(e) It is a “qualified institutional buyer” as defined in Rule 144A under the Securities Act, other than a person that is or an eligible contract participant “accredited investor” as defined under Section 1a(18)(C) of the Commodity Exchange Securities Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the SharesCounterparty.
(g) Counterparty’s filings under Counterparty represents that it is not subject to the Securities Act, the Securities Exchange Employee Retirement Income Security Act of 19341974, as amended (“ERISA”), and the assets used in the Transaction (1) are not assets of any “plan” (as such term is defined in Section 4975 of the Internal Revenue Code (the “Exchange ActCode”)) or other applicable securities laws that are required subject to be filed have been filed and, as Section 4975 of the respective dates thereof Code or any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title I of ERISA, and as (2) do not constitute “plan assets” within the meaning of the Trade DateDepartment of Labor Regulation 2510.3-101, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading29 CFR Section ▇▇▇▇-▇-▇▇▇.
(h) To Counterparty’s actual knowledge, There is no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to (collectively, “Adverse Laws”) that, as a result of the ownership or control (whether direct, beneficial, constructive or otherwise) of Shares by The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, Inc. (“Bank Parent”) or any person controlled directly or indirectly by Bank Parent, would give rise to any reporting, consent, reporting or registration obligations or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as entity on Bank Parent or any such controlled person or would result in a result of Dealer not insignificant adverse effect on Bank Parent or its affiliates owning or holding (however defined) Shares, in each caseany such controlled person, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided any Adverse Law that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally applies to the ownership of common equity securities positions generally without regard to the nature of U.S. domestic issuers listed on the issuer’s business (such as Sections 13 and 16 of the Exchange by Dealer Act) or any of its affiliates Adverse Law that applies solely as a result of it the business, identity, place of business or any jurisdiction of organization of the holder of the common stock (such affiliates being a financial institution or broker dealeras the Bank Holding Company Act of 1956, as amended).
(i) Other than Textron Business Credit, Inc., which is a “Rhode Island financial institution,” and Textron Financial Corporation, which is a “Rhode Island bank holding company” but is not a bank holding company under the Bank Holding Company Act of 1956, as amended, Counterparty (A) is capable of evaluating investment risks independentlynot and does not control, both in general and with regard to all transactions and investment strategies involving directly or indirectly, a security bank or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer bank holding company or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 millionother financial institution regulated under federal or state banking law.
(j) Counterparty is not as of It has received, read and understands the Trade Date, OTC Options Risk Disclosure Statement and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering Standardized Options”. Each party acknowledges and agrees to be bound by the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one Conduct Rules of the Initial Purchasers or its affiliateFinancial Industry Regulatory Authority, as Counterparty’s agentInc. applicable to transactions in options, described under “Use of Proceeds” in and further agrees not to violate the Offering Memorandumposition and exercise limits set forth therein.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[________], 20202025, between Counterparty and ▇▇▇▇▇▇▇▇▇ Sachs LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar 37 Insert Dealer’s notice contact information. laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act Act, or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions and/or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual its knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, Shares in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on connection with the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerTransaction.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior to [Counterparty has received, read and understands the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction OTC Options Risk Disclosure Statement and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.Standardized Options”.]38
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[DATE], 20202018, between among Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[ ] and [ ], as representative representatives of the Initial Purchasers initial purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual (i) Registration Statement on Form S-1, as filed with the Securities and Exchange Commission (“SEC”) on April 5, 2017, (ii) Quarterly Report on Form 10-K for Q, filed with the year ended SEC on September 8, 2017, and (iii) Current Report on Form 8-K, filed with the SEC on December 316, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2017, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To Counterparty’s knowledge, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jh) Counterparty acknowledges that the board of directors of Counterparty has granted the approval necessary to cause the restrictions set forth in Section 203 of the Delaware General Corporation Law (the “Business Combinations Statute”) to be inapplicable to the Transaction, including, without limitation, transactions in, or linked to, Counterparty’s securities to be effected by Dealer in connection with hedging the Transaction, and as a result neither Dealer nor any of its affiliates or associates shall be subject to the restrictions in the Business Combinations Statute as an “interested stockholder” of Counterparty by virtue of (i) its entry into the Transaction or (ii) any act that Dealer may take in furtherance of the Transaction (including without limitation the hedging transactions to be effected by Dealer or its affiliates in connection with the Transaction, whether in Shares or transactions that references the Shares) or (iii) its purchase of, as the case may be, and/or market-making in, the Convertible Notes.
(i) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Okta, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19May 15, 20202018, between Counterparty among Counterparty, ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) The assets of Counterparty is do not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, constitute “insolventplan assets” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May 27, 20202021, between Counterparty among Counterparty, Realogy Co-Issuer Corp. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer Dealer, instead of and notwithstanding Counterparty’s representations and warranties in Section 3(a) of the Agreement, on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate company power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate company action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws limited liability company agreement (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Each of Counterparty and the Issuer is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty the Issuer or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; . provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) Counterparty acknowledges that the Transaction may constitute a purchase of the Issuer’s equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty and Issuer will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if Counterparty and/or Issuer receive loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its and/or the Issuer’s equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that neither it nor the Issuer has applied, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the Cares Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law, including the Cares Act and the Federal Reserve Act, as amended, and (b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty or the Issuer agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty or the Issuer and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution. Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade DateDate or subsequently enacted, and Counterparty shall not be after giving effect to the transactions contemplated herebyadopted or amended), “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42Athe Cares Act and the Federal Reserve Act, 42Bas amended, and 166 (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Companies ▇▇▇ ▇▇▇▇ Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of Bermuda (the “Companies Act”)Transaction in all relevant respects).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. (a) Each of the representations and warranties of Counterparty set forth in Section 1 4 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August 11, 2020, between Counterparty and ▇▇▇▇▇▇▇▇▇ Sachs & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) : Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-by laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2019, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To Counterparty’s knowledge, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.. |US-DOCS\117325852.5||
(d) Counterparty Each of it and its affiliates is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not acknowledges that the board of directors of Counterparty has granted the approval necessary to cause the restrictions set forth in Section 203 of the Delaware General Corporation Law (the “Business Combinations Statute”) to be inapplicable to the Transaction, including, without limitation, transactions in, or linked to, Counterparty’s securities to be effected by Dealer in connection with hedging the Transaction, and as a result neither Dealer nor any of its affiliates or associates shall be subject to the restrictions in the Business Combinations Statute as an “interested stockholder” of Counterparty by virtue of (i) its entry into the Transaction or (ii) any act that Dealer may take in furtherance of the Transaction (including without limitation the hedging transactions to be effected by Dealer or its affiliates in connection with the Transaction, whether in Shares or transactions that references the Shares) or (iii) its purchase of, as the case may be, and/or marketmaking in, the Convertible Notes.
(k) On each of the Trade Date and the Premium Payment Date, and Counterparty shall is not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsincorporation.
(l) On Each party acknowledges and agrees to be bound by the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one Conduct Rules of the Initial Purchasers or its affiliateFinancial Industry Regulatory Authority, as Counterparty’s agentInc. applicable to transactions in options, described under and further agrees not to violate the position and exercise limits set forth therein.
(m) Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Use Characteristics and Risks of Proceeds” in the Offering Memorandum.Standardized Options”. |US-DOCS\117325852.5||
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September 2, 2020, 2025 between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, BofA Securities, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Trade Date and the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date (or such other date as specified below) that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of of, or transactions in, common equity securities of a U.S. domestic issuers incorporated corporation listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) As of and immediately after each of the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct its business, and its entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not as of the Trade Datenot, and Counterparty shall will not be after giving effect to the transactions contemplated herebybe, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the its jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that Counterparty’s board neither it nor any of directors its subsidiaries has authorized applied for, and throughout the term of the Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and approved the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and would not cause Counterparty to fail to satisfy any related hedging activity condition for purposes application for or receipt or retention of Chapter 110F such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief based on the terms of Massachusetts General Laws and agrees to deliver the program or facility as of the date of such advice or (b) delivers to Dealer evidence of a copy waiver or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade DateDate or subsequently enacted, neither Issuer nor adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (includingregulation, without limitationguidance, by means of any cash-settled interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference to the Transaction or its affiliate, as Counterparty’s agent, described under “Use by general reference to transactions with the attributes of Proceeds” the Transaction in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. In addition to the representations and warranties set forth in Section 3(a) of the Agreement, Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(a) Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June [ ], 20202024, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. JPMorgan Securities LLC, as representative of the Initial Purchasers party thereto named therein (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:.
(ib) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bc) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(cd) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(de) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ef) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fg) Each of Counterparty and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(k) On and immediately after the Trade Date and Premium Payment Date, (A) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (B) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (C) Counterparty will be able to continue as a going concern; (D) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 Section 23B.06.310 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Washington Business Corporation Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19April 14, 2020, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[ ], [ ] and [ ], as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Dick's Sporting Goods, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19September 12, 20202017, between Counterparty among Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative representatives of the Initial Purchasers party thereto (the “Initial PurchasersRepresentatives”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December January 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2017, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(i) Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(j) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares plus the “Number of Shares” under the Base Convertible Bond Hedge Transaction Confirmation in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 21, 20202023, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers initial purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer Dealer, instead of and notwithstanding Counterparty’s representations and warranties in Section 3(a) (other than Section 3(a)(i)) of the Agreement, on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (A) the certificate articles of incorporation or by-laws (or any equivalent documents) of Counterparty, or (B) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (C) any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except for any such conflicts, breaches, defaults or lien creations in the cases of clause (C) above that would not adversely affect the ability of Counterparty to fulfill its obligations under this Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19October 1, 20202014, between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31February 28, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2014, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument other than, in the case of clause (iii), any such conflict, breach, default or lien that would not have a material adverse effect on Counterparty’s ability to perform its obligations under the Transaction.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” ”, as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (”, as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD 50 million.
(i) Without limiting the generality of Section 3(a)(iii) of the Agreement or Section 8(b) hereof, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.
(j) Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(k) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the product of the Number of Shares Options, and the Option Entitlement in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsincorporation.
(l) On Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with the Trade DateTransaction and any other over-the-counter derivative transactions between Counterparty and Dealer or its affiliates, neither Issuer nor any “affiliate” Dealer or “affiliated purchaser” (each its affiliate is acting as defined principal and is not a fiduciary or advisor in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means respect of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interestsuch transaction, including a unit of beneficial interest in a trust any entry, exercise, amendment, unwind or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumtermination thereof.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19January [ ], 2020, 2021 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions and/or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, Shares in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on connection with the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerTransaction.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware.
(j) Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or organization a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Counterparty represents and warrants that it has not applied, and has no present intention to apply, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation Sections 42Athe CARES Act and the Federal Reserve Act, 42Bas amended, and 166 (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the Companies ▇▇▇ ▇▇▇▇ date specified in such condition, repurchased, or will not repurchase, any equity security of Bermuda Counterparty, and has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Companies ActRestricted Financial Assistance”)).
; provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (ka) Prior determines based on the advice of nationally recognized outside counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Trade Date, Counterparty represents that Counterparty’s board Transaction or by general reference to transactions with the attributes of directors has authorized the Transaction and approved in all relevant respects). Counterparty agrees that if it or any of its subsidiaries applies for any such governmental assistance, then to the extent required in any applicable application, it or such subsidiary will disclose the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering relevant governmental authority. Counterparty acknowledges that entering into the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or Transaction may limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers its or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumsubsidiaries’ ability to receive such governmental assistance.
Appears in 1 contract
Sources: Call Option Transaction (MARRIOTT VACATIONS WORLDWIDE Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19January 25, 20202016, between Counterparty among Counterparty, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein, except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Company to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate Certificate of incorporation Incorporation or bythe Amended and Restated By-laws Laws of Counterparty (or any equivalent documents), (ii) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to CounterpartyCompany’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 2014 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case ) to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on (x) Counterparty and its subsidiaries, taken as a whole, (y) Dealer’s rights or obligations relating to the Transaction, or (z) the power or ability of Counterparty to execute and deliver this Confirmation or perform its obligations hereunder.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under The documents incorporated by reference in the Securities ActOffering Memorandum, when they were filed with the U.S. Securities Exchange Act of 1934, as amended Commission (the “Commission”) conformed in all material respects to the requirements of the Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of and the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission Offering Memorandum does not contain any untrue statement of a material fact required or omit to be stated therein or state a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities Shares except for the reporting requirements of U.S. domestic issuers listed on the ExchangeExchange Act and the rules promulgated thereunder; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations as of the date hereof are not guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 1,468,213 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized register the Transaction and approved under the Transaction and Securities Act, any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsstate securities law or other applicable federal securities law.
(ln) On Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering MemorandumAct.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19November 14, 20202022, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, BofA Securities, Inc., BMO Capital Markets Corp. and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act, the Exchange Act or (as defined below), state securities lawslaws or the rules and regulations of FINRA applicable to Dealer; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of Dealer or any of such affiliates being financial institutions and/or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares in connection with the Transaction, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding except for any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on reporting obligations under the Exchange by Dealer or any of its affiliates solely Act (as a result of it or any of such affiliates being a financial institution or broker dealerdefined below).
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior to Counterparty acknowledges that it has received, read and understands the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction OTC Options Risk Disclosure Statement and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvalsStandardized Options”.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August [ ], 2020, 2023 between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCBofA Securities, Inc., as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding (i) any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerbroker-dealer or (ii) U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents and warrants that Counterparty’s board it and its subsidiaries have not applied, and throughout the term of directors has authorized the Transaction and approved the Transaction and any related hedging activity none of them shall apply, for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
loan, loan guarantee, direct loan (l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as that term is defined in Rule 10b-18 under the Exchange Coronavirus Aid, Relief, and Economic Security Act (the “Rule 10b-18CARES Act”)) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of Issuer shall the Trade Date for or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief, that Counterparty or such subsidiary agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution (“Restricted Financial Assistance”); provided that Counterparty may apply for any Restricted Financial Assistance if Counterparty determines based on the advice of nationally recognized outside counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such governmental assistance based on the terms of the relevant program or facility as of the date of such advice. Counterparty further represents and warrants that the Premium for the Transaction is not being paid, in whole or in part, directly or indirectly indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (includinga) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitationlimitation the CARES Act and the Federal Reserve Act, by means of as amended, and (b) requires under such applicable law (or any cash-settled regulation, guidance, interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference thereto or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” by general reference to transactions with the attributes thereof in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February May 19, 2020, between 2015 among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and RBC Capital Markets, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), ) are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation and has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order or provision in the Articles of Incorporation of Counterparty or the By-Laws of Counterparty (each, as amended from time to time), in each case, applicable to the Shares Shares, would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each caseexcept for such approvals as may be required to vote Shares that constitute “control shares” pursuant to Chapter 42 of the Indiana Business Corporation Law, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealeramended.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) Without limiting the generality of Section 3(a)(iii) of the Agreement or Section 8(b) hereof, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.
(j) Counterparty is not as has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the Trade Date, most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) Risks of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy CodeStandardized Options”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade DateCounterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved in connection with the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws other over-the-counter derivative transactions between Counterparty and agrees to deliver to Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” fiduciary or “affiliated purchaser” (each as defined advisor in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means respect of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interestsuch transaction, including a unit of beneficial interest in a trust any entry, exercise, amendment, unwind or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumtermination thereof.
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Interactive Intelligence Group, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September 11, 20202019, between among Counterparty and Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2018, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.[Reserved]
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “‘insolvent” ’ (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “‘Bankruptcy Code”’)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals[Reserved].
(ln) On [Reserved].
(o) [Reserved].
(p) [Reserved].
(q) Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act.
(r) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Sources: Base Call Option Transaction (Apellis Pharmaceuticals, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August 18, 2020, between 2020 among Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[ ] and [ ], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the restated certificate of incorporation or by-laws amended and restated bylaws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amendedamended (the “Commodity Exchange Act”), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) The assets of Counterparty is do not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, constitute “insolventplan assets” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that, as of the date hereof, each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September [__], 2020, 2022 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto initial purchasers (the “Initial Purchasers”)) party thereto, are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty Counterparty; and (iii) constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2021, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amendedamended (the “CEA”), other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange ActCEA).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act Counterparty is not aware of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no any state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares that would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) Counterparty is The assets used in the Transaction (1) are not as assets of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, any “insolventplan” (as such term is defined in Section 101(324975 of the U.S. Internal Revenue Code (the “Code”)) subject to Section 4975 of the Code or any “employee benefit plan” (as such term is defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) subject to Title I of ERISA, and (2) do not constitute “plan assets” within the meaning of Department of Labor Regulation 2510.3-101, 29 CFR Section ▇▇▇▇-▇-▇▇▇.
(j) On and immediately after each of the Trade Date and the Premium Payment Date, (A) the Counterparty will not be insolvent or rendered insolvent, left with unreasonably small capital or intend to incur debts beyond its ability to pay its debts as they mature, as these concepts are used in Section 548(a)(1)(B) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (B) the Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws Section 160 of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 General Corporation Law of the Companies ▇▇▇ ▇▇▇▇ State of Bermuda (the “Companies Act”))Delaware.
(k) Prior Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Dealer nor any of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the Trade Date, Counterparty represents that Counterparty’s board treatment of directors has authorized the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and approved the Transaction Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging—Contracts in Entity’s Own Equity (or any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalssuccessor issue statements) or any other accounting guidance.
(l) On Counterparty acknowledges that the Trade DateTransaction may constitute a purchase of its equity securities. Counterparty further acknowledges that, neither Issuer nor any pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “affiliate” Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or “affiliated purchaser” direct loans (each as that term is defined in Rule 10b-18 the Cares Act) under the Exchange Act (“Rule 10b-18”)section 4003(b) of Issuer the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Accordingly, Counterparty represents and warrants that it has not applied, and throughout the Term of this Transaction shall directly or indirectly not apply, for a loan, loan guarantee, direct loan (including, without limitation, by means of any cash-settled as that term is defined in the Cares Act) or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase ofinvestment, or commence to receive any tender offer relating tofinancial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law, including the Cares Act and the Federal Reserve Act, as amended, and (b) requires, as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any Shares (or an equivalent interest, including a unit equity security of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Alnylam Pharmaceuticals, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19[March 25], 20202014, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and Deutsche Bank Securities Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(i) Counterparty is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act.
(j) Counterparty’s financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness.
(k) Counterparty’s investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and Counterparty is able to bear any loss in connection with the Transaction, including the loss of its entire investment in the Transaction.
(l) Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to register the Transaction under the Securities Act, any state securities law or other applicable federal securities law.
(m) Counterparty understands, agrees and acknowledges that no obligations of Dealer to it hereunder, if any, shall be entitled to the benefit of deposit insurance and that such obligations shall not be guaranteed by any affiliate of Dealer or any governmental agency.
(A) Counterparty is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (B) Counterparty is not relying on any communication (written or oral) of Dealer or any of its affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction) and (C) no communication (written or oral) received from Dealer or any of its affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.
(o) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of [ ]13 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(kp) Prior Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties with respect to the Trade Date, Counterparty represents that Counterparty’s board treatment of directors has authorized the Transaction under ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and approved the Transaction Hedging, ASC Topic 480, Distinguishing Liabilities from Equity and ASC Topic 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”successor issue statements)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence under any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumother accounting guidance.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May 13, 2020, 2024 between Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC, BofA Securities, Inc. and Mizuho Securities USA LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2023, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding (i) any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerbroker-dealer or (ii) U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents and warrants that Counterparty’s board it and its subsidiaries have not applied, and throughout the term of directors has authorized the Transaction and approved the Transaction and any related hedging activity none of them shall apply, for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
loan, loan guarantee, direct loan (l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as that term is defined in Rule 10b-18 under the Exchange Coronavirus Aid, Relief, and Economic Security Act (the “Rule 10b-18CARES Act”)) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of Issuer shall the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief, that Counterparty or such subsidiary agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in such condition, made a capital distribution or will not make a capital distribution (“Restricted Financial Assistance”); provided that Counterparty may apply for any Restricted Financial Assistance if Counterparty determines based on the advice of nationally recognized outside counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such governmental assistance based on the terms of the relevant program or facility as of the date of such advice. Counterparty further represents and warrants that the Premium for the Transaction is not being paid, in whole or in part, directly or indirectly indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (includinga) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitationlimitation the CARES Act and the Federal Reserve Act, by means of as amended, and (b) requires under such applicable law (or any cash-settled regulation, guidance, interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer to purchase, place any bid that such funds be used for specified or limit order enumerated purposes that would effect a do not include the purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers Transaction (either by specific reference thereto or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” by general reference to transactions with the attributes thereof in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 6 of the Purchase Placement Agency Agreement (the “Purchase Placement Agency Agreement”) ), dated as of February 19May 12, 20202016, between Counterparty and ▇▇▇. ▇▇▇▇ Sachs & Co. Capital Advisors, LLC, as representative of the Initial Purchasers party thereto Placement Agent (the “Initial PurchasersPlacement Agent”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein; except to the extent that such representation and warranties if not true or correct, would not have a material adverse effect on the power or ability of Counterparty to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities lawslaws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty Issuer or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) ), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, the reporting or registration requirements of the Dutch Corporate Income Tax ▇▇▇ ▇▇▇▇ (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(ji) Counterparty It is not as of the Trade Date, and Counterparty shall not be after giving effect a party which is able to adhere to the transactions contemplated herebyAttachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “insolvent” NFC Representation Protocol”) as if it were a party making the NFC Representation (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)NFC Representation Protocol).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Wright Medical Group N.V.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August 17, 20202021, between Counterparty and among Counterparty, ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLCLLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(hvii) To the knowledge of Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions contemplated herebyTransaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner described in the offering circular relating to the sale of the Convertible Notes and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 1911, 20202013, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), other than the representations set forth in Section 3(o), Section 3(r) and Section 3(s) of the Purchase Agreement, in each case, as such representations relate to the Transaction, are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the SharesCounterparty.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each As of the date hereof, Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 4 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 1926, 20202015, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC and ▇.▇. ▇▇▇▇▇▇ Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”)) party thereto, are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” ”, as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(if) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD 50 million.
(jg) Without limiting the generality of Section 3(a)(iii) of the Agreement or Section 8(b) hereof, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(h) Counterparty has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(i) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the product of the Number of Shares Options, and the Option Entitlement in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(kj) Prior to the Trade DateCounterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved in connection with the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws other over-the-counter derivative transactions between Counterparty and agrees to deliver to Dealer or its affiliates, Dealer or its affiliate is acting as principal and is not a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” fiduciary or “affiliated purchaser” (each as defined advisor in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means respect of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interestsuch transaction, including a unit of beneficial interest in a trust any entry, exercise, amendment, unwind or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumtermination thereof.
Appears in 1 contract
Sources: Call Option Transaction (Rovi Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19October 15, 20202024, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been 50 Counterparty to confirm/provide. 51 Insert Dealer’s notice contact information. duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No To the knowledge of Counterparty, no consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliate being financial institutions or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” within the meaning of 29 C.F.R. § 2510.3-101 under the Employee Retirement Income Security Act of 1974, as amended.
(j) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty represents and warrants that it has not applied, and shall not, without the consent of Dealer, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty, and that it has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided that Counterparty may apply for Restricted Financial Assistance if (x) Counterparty either (a) determines based on advice of outside counsel reasonably satisfactory to the Trade Date, Dealer that the terms of the Transaction would not cause Counterparty represents to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects) and (y) on the basis of which Dealer consents to Counterparty’s board application for such Restricted Financial Assistance (such consent not to be unreasonably withheld or delayed). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of directors has authorized the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction and approved (either by specific reference to the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees or by general reference to deliver to Dealer a copy transactions with the attributes of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsTransaction in all relevant respects).
(l) On [Counterparty has received, read and understands the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect OTC Options Risk Disclosure Statement and a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one copy of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Use Characteristics and Risks of Proceeds” in the Offering MemorandumStandardized Options”.]52 52 Include for applicable Dealers.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 4 of the Purchase Subscription Agreement (the “Purchase Subscription Agreement”) dated as of February 19May 6, 2020, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative each of the Initial Purchasers Investors party thereto (the “Initial PurchasersInvestors”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (ii) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)2018, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.[Reserved]
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “‘insolvent” ’ (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “‘Bankruptcy Code”’)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals[Reserved].
(ln) On [Reserved].
(o) [Reserved].
(p) [Reserved].
(q) Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act.
(r) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate1974, as Counterparty’s agentamended, described under “Use the Department of Proceeds” in the Offering MemorandumLabor Regulations promulgated thereunder or similar law.
Appears in 1 contract
Sources: Call Option Transaction (Apellis Pharmaceuticals, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19December 20, 20202018, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”), or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August 12, 20202019, between Counterparty and among Counterparty, ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, BofA Securities, Inc. and ▇▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers initial purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein, except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Counterparty to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer Dealer, instead of and notwithstanding Company’s representations and warranties in Section 3(a) (other than Section 3(a)(i)) of the Agreement, on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19June 24, 20202014, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, Citigroup Global Markets Inc. and RBC Capital Markets, LLC, as representative representatives of the Initial Purchasers initial purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (A) the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or (B) any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (C) any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument, except for any such conflicts, breaches, defaults or lien creations in the cases of clause (C) above that would not adversely affect the ability of Counterparty to fulfill its obligations under this Transaction.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fv) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.Shares.13
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ivi) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD $50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 11, 20202019, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
: (ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Base Call Option Transaction (Vonage Holdings Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[ ], 2020, 2022 between Counterparty and [▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and BofA Securities, Inc.], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions and/or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, Shares in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on connection with the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerTransaction.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware.
(j) Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or organization a capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security Act (the “Cares Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under section 4003(b) of the Cares Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the Cares Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system. Counterparty represents and warrants that it has not applied, and has no present intention to apply, until after the first date on which no portion of the Transaction remains outstanding following any final exercise and settlement, cancellation or early termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation Sections 42Athe CARES Act and the Federal Reserve Act, 42Bas amended, and 166 (b) (i) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that the Counterparty comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the Companies ▇▇▇ ▇▇▇▇ date specified in such condition, repurchased, or will not repurchase, any equity security of Bermuda Counterparty, and has not, as of the date specified in the condition, made a capital distribution or will make a capital distribution, or (ii) where the terms of the Transaction would cause Counterparty to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Companies ActRestricted Financial Assistance”)).
; provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (ka) Prior determines based on the advice of nationally recognized outside counsel that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Trade Date, Counterparty represents that Counterparty’s board Transaction or by general reference to transactions with the attributes of directors has authorized the Transaction and approved in all relevant respects). Counterparty agrees that if it or any of its subsidiaries applies for any such governmental assistance, then to the extent required in any applicable application, it or such subsidiary will disclose the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering relevant governmental authority. Counterparty acknowledges that entering into the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or Transaction may limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers its or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumsubsidiaries’ ability to receive such governmental assistance.
Appears in 1 contract
Sources: Call Option Transaction (MARRIOTT VACATIONS WORLDWIDE Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May 17, 20202017, between among Counterparty and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇ Incorporated as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates their being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May [__], 20202018, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation Labor Regulations promulgated thereunder or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))similar law.
(kj) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F Section 203 of Massachusetts General Laws the Delaware Corporation Law and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(lk) On Counterparty has received, read and understands the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, OTC Options Risk Disclosure Statement provided by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect Dealer and a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one copy of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Use Characteristics and Risks of Proceeds” in the Offering MemorandumStandardized Options”.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 23, 2020, 2010 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇ Incorporated as representative representatives of the several Initial Purchasers party thereto (the “Initial Purchasers”)thereto, are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the this Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, and will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(181a(12) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C1a(12)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Base Call Option Transaction Confirmation (Kaiser Aluminum Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 [__] of the Purchase Underwriting Agreement (the “Purchase Underwriting Agreement”) dated as of February 19May [___], 2020, between Counterparty and among Counterparty, ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLCLLC and BofA Securities, Inc., as representative representatives of the Initial Purchasers Underwriters party thereto (the “Initial PurchasersUnderwriters”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(gvii) Counterparty’s filings under To the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as knowledge of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions contemplated herebyTransaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner described in the prospectus relating to the sale of the Convertible Notes and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kxi) Prior Counterparty acknowledges that execution of this Confirmation may constitute a purchase of its equity securities. It further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty would be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System for the purpose of providing liquidity to the financial system (together with loans, loan guarantees or direct loans under section 4003(b) of the CARES Act, “Governmental Financial Assistance”). Accordingly, Counterparty represents and warrants that it and its subsidiaries have not applied for, and prior to the termination of this Confirmation has no intention to apply for Governmental Financial Assistance under any governmental program or facility that (a) is established under the CARES Act or the Federal Reserve Act, as amended, and (b)(i) requires, as a condition of such Governmental Financial Assistance, that the Counterparty agree, attest, certify or warrant that it has not, or otherwise be bound by law that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s board , or (ii) where the terms of directors has authorized the Transaction and approved would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty delivers to Dealer either (a) a written opinion of counsel to the effect that the terms of the Transaction and would not cause Counterparty to fail to satisfy any related hedging activity condition for purposes application for or receipt or retention of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy such Financial Assistance based on the terms of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” program or “affiliated purchaser” (each facility as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers date of such opinion or its affiliate, as Counterparty’s agent, described under “Use (b) evidence of Proceeds” a waiver from a governmental authority with jurisdiction for such program or facility with respect to the Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in the Offering Memorandumall relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that, as of the date hereof, each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19September [__], 2020, 2025 between Counterparty and ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC, as representative of the Initial Purchasers party thereto initial purchasers (the “Initial Purchasers”)) party thereto, are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary the corporate power and authority to execute, deliver and perform its obligations in respect of the Transactionunder this Confirmation; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly authorized, executed and delivered by Counterparty Counterparty; and (iii) this Confirmation constitutes its Counterparty’s valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable (A) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, fraudulent conveyance and similar laws affecting creditors’ the rights and remedies of creditors generally, and subjecteither under state or federal law, as to enforceability, to (B) general principles of equity, including principles and (C) the qualification that broadly worded waivers, waivers of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification damages, offsets or defenses, indemnification, waivers of unknown or future claims, and contribution hereunder waivers of statutory, regulatory or constitutional rights may be limited by federal or state securities laws or on public policy relating theretoor statutory grounds.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery by Counterparty of this Confirmation nor and the incurrence or performance of Counterparty’s obligations hereunder (i) will not violate the Restated Certificate of Counterparty hereunder Incorporation of Counterparty, as amended by the Certificate of Amendment dated May 8, 2025, or the Second Amended and Restated Bylaws of Counterparty, (ii) will not violate any provision of any Covered Laws (other than federal or state securities, commodities or “blue sky” laws, including the antifraud provisions thereof), (iii) will not result in a breach or violation of, or constitute a default under, any of the agreements that are filed as an exhibit to Counterparty’s Annual Report on Form 10-K filed on February 13, 2025 (for the year ended December 31, 2024), as amended by Counterparty’s Quarterly Reports on Form 10-Q filed on May 1, 2025 (for the quarter ended March 31, 2025) and filed on July 31, 2025 (for the quarter ended June 30, 2025) and (iv) will not conflict with or result in a breach or violation of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for . “Covered Laws” means the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation laws of the transactions contemplated herebyState of New York, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) General Corporation Law of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) State of Delaware and the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities federal laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))America.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Alnylam Pharmaceuticals, Inc.)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 5, 20202019, between Counterparty and among Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated and BMO Capital Markets Corp., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any applicable order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The underlying assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), by reason of Department of Labor Regulation 29 CFR §2510.3-101, as modified by Section 3(42) of ERISA.
(j) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August 12, 20202021, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[***], as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed 2020, as exhibits pursuant to Item 601(b)(10)(iii) of Regulation Ssubsequently amended by Counterparty’s Annual Report on Form 10-K under K/A for the Securities Act)year ended December 31, 2020, as updated by any subsequent filingsfilings with the Securities and Exchange Commission, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law. Dealer hereby represents and warrants to Counterparty on the Trade Date, Counterparty represents date hereof that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy is an “eligible contract participant” (as such term is defined in Section 1a(18) of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Commodity Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliateAct, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumamended.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19January 25, 20202016, between Counterparty among Counterparty, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein, except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Company to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate Certificate of incorporation Incorporation or bythe Amended and Restated By-laws Laws of Counterparty (or any equivalent documents), (ii) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to CounterpartyCompany’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 2014 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case ) to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on (x) Counterparty and its subsidiaries, taken as a whole, (y) Dealer’s rights or obligations relating to the Transaction, or (z) the power or ability of Counterparty to execute and deliver this Confirmation or perform its obligations hereunder.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under The documents incorporated by reference in the Securities ActOffering Memorandum, when they were filed with the U.S. Securities Exchange Act of 1934, as amended Commission (the “Commission”) conformed in all material respects to the requirements of the Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of and the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission Offering Memorandum does not contain any untrue statement of a material fact required or omit to be stated therein or state a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities Shares except for the reporting requirements of U.S. domestic issuers listed on the ExchangeExchange Act and the rules promulgated thereunder; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations as of the date hereof are not guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 17,618,556 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized register the Transaction and approved under the Transaction and Securities Act, any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsstate securities law or other applicable federal securities law.
(ln) On Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering MemorandumAct.
Appears in 1 contract
Representations and Warranties of Counterparty. In addition to the representations and warranties set forth in Section 3(a) of the Agreement, Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(a) Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March [ ], 20202021, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. JPMorgan Securities LLC, as representative of the Initial Purchasers party thereto named therein (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:.
(ib) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bc) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(cd) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(de) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ef) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fg) Each of Counterparty and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) On and immediately after the Trade Date and Premium Payment Date, (A) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (B) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (C) Counterparty will be able to continue as a going concern; (D) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 Section 23B.06.310 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Washington Business Corporation Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 23, 2020, 2010 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Sachs Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co. LLC, ▇▇▇▇▇ Incorporated as representative representatives of the several Initial Purchasers party thereto (the “Initial Purchasers”)thereto, are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the this Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended (the “Securities Act”) or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, and will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(181a(12) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C1a(12)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”)).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Additional Call Option Transaction Confirmation (Kaiser Aluminum Corp)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19January 25, 20202016, between Counterparty among Counterparty, Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein, except to the extent that such representations and warranties, if not true or correct, would not have a material adverse effect on the power or ability of Company to execute and deliver this Confirmation or to perform its obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of (i) the certificate Certificate of incorporation Incorporation or bythe Amended and Restated By-laws Laws of Counterparty (or any equivalent documents), (ii) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or (iii) any agreement or instrument filed as an Exhibit exhibit to CounterpartyCompany’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 2014 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case ) to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrumentinstrument except, in the case of clause (iii) above, for any such conflict, breach, default or lien that would not, individually or in the aggregate, have a material adverse effect on (x) Counterparty and its subsidiaries, taken as a whole, (y) Dealer’s rights or obligations relating to the Transaction, or (z) the power or ability of Counterparty to execute and deliver this Confirmation or perform its obligations hereunder.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under The documents incorporated by reference in the Securities ActOffering Memorandum, when they were filed with the U.S. Securities Exchange Act of 1934, as amended Commission (the “Commission”) conformed in all material respects to the requirements of the Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of and the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission Offering Memorandum does not contain any untrue statement of a material fact required or omit to be stated therein or state a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) by Dealer as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities Shares except for the reporting requirements of U.S. domestic issuers listed on the ExchangeExchange Act and the rules promulgated thereunder; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(i) Counterparty understands that no obligations of Dealer to it hereunder will be entitled to the benefit of deposit insurance and that such obligations as of the date hereof are not guaranteed by any Affiliate of Dealer or any governmental agency.
(j) COUNTERPARTY UNDERSTANDS THAT THE TRANSACTION IS SUBJECT TO COMPLEX RISKS THAT MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
(k) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jl) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 2,202,320 Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))organization.
(km) Prior Counterparty understands, agrees and acknowledges that Dealer has no obligation or intention to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized register the Transaction and approved under the Transaction and Securities Act, any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsstate securities law or other applicable federal securities law.
(ln) On Without limiting the Trade Dategenerality of Section 3(a)(iii) of the Agreement, neither Issuer nor any “affiliate” the Transaction will not violate Rule 13e-1 or “affiliated purchaser” (each as defined in Rule 10b-18 13e-4 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering MemorandumAct.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 4, 2020, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC, BofA Securities, Inc. and ▇▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading[Reserved.]
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 the adequate surplus requirements of Section 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsTransaction.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.
(m) Counterparty represents and warrants that it and any of its subsidiaries has not applied, except for any privately negotiated repurchase of Shares effected through one and shall not until after the first date on which no portion of the Initial Purchasers Transaction remains outstanding following any final exercise and settlement, cancellation or its affiliateearly termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (i) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (ii) (A) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that Counterparty comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s agent, described under “Use and that it has not, as of Proceeds” the date specified in the Offering Memorandumcondition, made a capital distribution or will make a capital distribution, or (B) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (x) determines based on the advice of outside counsel of national standing that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (y) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[__], 20202025, between among Counterparty and Citigroup Global Markets Inc., ▇▇▇▇▇▇▇ Sachs ▇▇▇▇▇ & Co. LLC, Barclays Capital, Inc. and Deutsche Bank Securities Inc., as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(gvii) Counterparty’s filings under To the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as knowledge of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions Transaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner contemplated herebyin its public filings under the Exchange Act and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19August [ ], 20202021, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed 2020, as exhibits pursuant to Item 601(b)(10)(iii) of Regulation Ssubsequently amended by Counterparty’s Annual Report on Form 10-K under K/A for the Securities Act)year ended December 31, 2020, as updated by any subsequent filingsfilings with the Securities and Exchange Commission, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law. Dealer hereby represents and warrants to Counterparty on the Trade Date, Counterparty represents date hereof that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy is an “eligible contract participant” (as such term is defined in Section 1a(18) of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Commodity Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliateAct, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumamended.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19March 16, 2020, 2021 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC and ▇▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Trade Date and the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date (or such other date as specified below) that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal applicable Canadian and United States federal, provincial or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate articles of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or United States state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any Canadian or other non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding (i) any such requirement that is applicable generally to the ownership of of, or transactions in, common equity securities of U.S. domestic issuers a Canadian incorporated corporation listed on the Exchange that is a reporting issuer in a Canadian province or territory by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerbroker-dealer and (ii) any such requirement for the Dealer to comply with the early warning and insider reporting requirements of applicable securities laws in Canada.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) As of and immediately after each of the Trade Date and the Premium Payment Date, (x) there are no reasonable grounds for believing that (a) the Counterparty is, or would after the payment of the Premium be, unable to pay its liabilities as they become due; or (b) the realizable value of the Counterparty’s assets would after the payment of the Premium be less than the aggregate of its liabilities and stated capital of all classes of shares and (y)
(A) the capital of Counterparty is adequate to conduct its business, and its entry into the Transaction will not impair its capital, (B) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature,
(C) Counterparty will be able to continue as a going concern, (D) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the its jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied for, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the Cares Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s board , and that it has not, as of directors has authorized the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and approved would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence of a waiver or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees is permitted under such program or facility (either by specific reference to deliver the Transaction or by general reference to Dealer a copy transactions with attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of directors covering a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the foregoing authorization and approvalspurchase of this Transaction (either by specific reference to this Transaction or by general reference to transactions with the attributes of this Transaction in all relevant respects).
(l) On Counterparty understands and acknowledges that, in the Trade Date, neither Issuer nor event the entering into the Transaction is construed by any securities regulatory body with competent jurisdiction as a purchase or sale of a “affiliatesecurity” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Securities Act (“Rule 10b-18”)Ontario) of Issuer shall directly or indirectly (including, without limitation, by means and/or the securities legislation of any cashother province or territory of Canada, such security will not have been qualified for distribution by way of prospectus pursuant to the Securities Act (Ontario) and/or the securities laws of any other province or territory of Canada and, therefore, could not (in the event of such construction) be sold, pledged, hypothecated, transferred or otherwise disposed of unless an exemption from the requirements thereof is available.
(m) Counterparty is an “accredited investor” as defined in National Instrument 45-settled 106 – Prospectus Exemptions.
(n) The exercise or deemed exercise of any Option hereunder and the delivery of Shares to the Counterparty upon such exercise or deemed exercise of any Option hereunder (in each case whether at maturity, upon early termination or cancellation or otherwise) shall not constitute an “issuer bid” as such term is defined in National Instrument 62-104 – Take-Over Bids and Issuer Bids if the Dealer is not located or resident in a province or territory of Canada and the Dealer’s last address as shown on the books of the Counterparty is not in any province or territory of Canada.
(o) For purposes of disclosure pursuant to the Interest Act (Canada), as amended, restated, replaced or re-enacted from time to time, the parties hereto acknowledge that the yearly rate of interest to which any rate of interest or other derivative instrument) purchaseamount payable under this Agreement, offer which is to purchasebe calculated on the basis of a number of days that is less than a full calendar year, place any bid or limit order that would effect is equivalent may be determined by multiplying such rate by a purchase offraction, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit the numerator of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase which is the actual number of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” days in the Offering Memorandumcalendar year in which such yearly interest is to be ascertained and the denominator of which is the number of days comprising such other basis.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[__], 20202021, between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC and Guggenheim Securities, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:: 37 Counterparty / K&E to provide. 38 Insert Dealer’s notice contact information.
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act Act, or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions and/or broker-dealers.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual its knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, Shares in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on connection with the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerTransaction.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a the number of Shares equal with respect to the Number of Shares Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior to [Counterparty has received, read and understands the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction OTC Options Risk Disclosure Statement and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.Standardized Options”.]39
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19June 4, 2020, between Counterparty and ▇G▇▇▇▇▇▇ Sachs & Co. LLC, BofA Securities, Inc. and W▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading[Reserved.]
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(i) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 the adequate surplus requirements of Section 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvalsTransaction.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.
(m) Counterparty represents and warrants that it and any of its subsidiaries has not applied, except for any privately negotiated repurchase of Shares effected through one and shall not until after the first date on which no portion of the Initial Purchasers Transaction remains outstanding following any final exercise and settlement, cancellation or its affiliateearly termination of the Transaction, apply, for a loan, loan guarantee, direct loan (as that term is defined in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”)) or other investment, or to receive any financial assistance or relief under any program or facility (collectively “Financial Assistance”) that (i) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (ii) (A) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) as a condition of such Financial Assistance, that Counterparty comply with any requirement not to, or otherwise agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s agent, described under “Use and that it has not, as of Proceeds” the date specified in the Offering Memorandumcondition, made a capital distribution or will make a capital distribution, or (B) where the terms of the Transaction would cause Counterparty under any circumstances to fail to satisfy any condition for application for or receipt or retention of the Financial Assistance (collectively “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (x) determines based on the advice of outside counsel of national standing that the terms of the Transaction would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such Financial Assistance based on the terms of the program or facility as of the date of such advice or (y) delivers to Dealer evidence or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction is permitted under such program or facility (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental authority with jurisdiction for such program or facility) that such funds be used for specified or enumerated purposes that do not include the purchase of the Transaction (either by specific reference to the Transaction or by general reference to transactions with the attributes of the Transaction in all relevant respects).
Appears in 1 contract
Representations and Warranties of Counterparty. Each Counterparty hereby represents and warrants to Dealer that each of the representations and warranties of Counterparty set forth in Section 1 3.01 of the Purchase Investment Agreement (the “Purchase Investment Agreement”) ), dated as of February 19April 3, 20202016, between Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLCA-G Holdings, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)L.P., are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein, provided that any such representation or warranty that is made as of a specific date is true and correct as of such date. Counterparty hereby further represents and warrants to Dealer on the date hereof and hereof, on and as of the Premium Payment Date and, in the case of the representation in Section 8(f), on any date on which Counterparty delivers a Notice of Early Redemption, that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any material agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such material agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty and each of its affiliates is not, on the date hereofof this representation, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; , (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; writing and (C) has total assets of at least USD $50 million.
(i) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Dealer is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under FASB’s Liabilities & Equity Project.
(j) Counterparty is not as On each of the Trade Date and the Premium Payment Date, Counterparty is not, and Counterparty shall will not be after giving effect to the transactions contemplated herebybe, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of 46,296,296 Shares in compliance with the corporate laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))its incorporation.
(k) Prior Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Trade DateSecurities Act, by virtue of Section 4(a)(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that Counterparty’s board (i) it has the financial ability to bear the economic risk of directors has authorized its investment in the Transaction and approved is able to bear a total loss of its investment, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws without a view to the distribution or resale thereof and agrees to deliver to Dealer a copy (iv) the assignment, transfer or other disposition of the resolutions of Counterparty’s board of directors covering Transaction has not been and will not be registered under the foregoing authorization Securities Act and approvalsis restricted under this Confirmation, the Securities Act and state securities laws.
(l) On Counterparty represents and warrants that it has received, read and understands the Trade DateOTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.
(m) Counterparty acknowledges its responsibilities under federal securities laws, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined and in Rule 10b-18 under particular Sections 9 and 10(b) of the Exchange Act (“Rule 10b-18”)) and the rules and regulations thereunder, in respect of Issuer shall directly or indirectly (this Transaction and the Convertible Notes, including, without limitation, by means of with respect to any cash-settled exercise or other derivative instrument) purchase, offer to purchase, place any bid redemption hereunder or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumthereunder.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 3 of each of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19May [__], 20202024, between among Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. LLCSecurities LLC and BofA Securities Inc, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(gvii) Counterparty’s filings under To the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as knowledge of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions Transaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner contemplated herebyin its public filings under the Exchange Act and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) )] dated as of February 19[__________], 20202019, between Counterparty and among Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Sachs & Co. LLCLLC and [__________], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.. 18 Include for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(gvii) Counterparty’s filings under To the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as knowledge of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date and the Premium Payment Date, Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a number of Shares equal to the Number of Shares in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Sources: Call Option Transaction (Zynga Inc)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19November 12, 20202018, between Counterparty and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth hereinherein except to the extent that such representation and warranties if not true or correct, would not have a material adverse effect on the power or ability of Counterparty to execute and deliver this Confirmation or to perform their obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) This Confirmation has been duly authorized, executed and delivered by Counterparty has and is enforceable against Counterparty in accordance with its terms, except, in each case, as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all necessary corporate power laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and authority except as enforcement thereof is subject to execute, deliver and perform its obligations general principles of equity (regardless of whether enforcement is considered in respect of the Transaction; a proceeding in equity or at law).
(iib) such The execution, delivery and performance of this Confirmation and the consummation of the Transaction contemplated hereby have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid do not and binding obligationwill not, enforceable against Counterparty in accordance whether with its termsor without the giving of notice or passage of time or both, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in constitute a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterpartyof, or any applicable law default or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed Repayment Event (as an Exhibit to Counterparty’s Annual Report on Form 10-K for defined in the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iiiPurchase Agreement) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation or imposition of any lien underlien, charge or encumbrance upon any properties or assets of Counterparty or any subsidiary thereof pursuant to the Agreements and Instruments (as defined in the Purchase Agreement), except for such agreement conflicts, breaches, defaults or instrumentRepayment Events (as defined in the Purchase Agreement) or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement), nor will such action result in any violation of (a) the provisions of the charter, by-laws or similar organizational document of Counterparty or any of its subsidiaries or (b) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (as defined in the Purchase Agreement), except, in the case of clause (b) above, for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement).
(c) No consentfiling with, or authorization, approval, authorizationconsent, license, order, registration, qualification or order decree of, any Governmental Entity (as defined in the Purchase Agreement) is necessary or filing with, any governmental agency required for the performance by Counterparty of its obligations hereunder or body the consummation of the Transaction contemplated by this Confirmation or any court is required in connection with for the due execution, delivery or and performance by Counterparty of this Confirmation, except such as have been already obtained and excluding any filing, authorization, approval, consent, license, order, registration, qualification or made and such decree the failure of which to obtain or make would not have a Material Adverse Effect (as may be required under defined in the Securities Act or state securities lawsPurchase Agreement).
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”as hereinafter defined)) , and Counterparty would be able to purchase a number of Shares equal to the product of the Number of Shares Options, and the Option Entitlement in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to Counterparty has received and read the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction OTC Options Risk Disclosure Statement and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvalsStandardized Options”.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19November 12, 20202018, between Counterparty and ▇▇▇▇▇▇▇ Sachs Lynch, Pierce, ▇▇▇▇▇▇ & Co. LLC▇▇▇▇▇ Incorporated, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth hereinherein except to the extent that such representation and warranties if not true or correct, would not have a material adverse effect on the power or ability of Counterparty to execute and deliver this Confirmation or to perform their obligations hereunder. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) This Confirmation has been duly authorized, executed and delivered by Counterparty has and is enforceable against Counterparty in accordance with its terms, except, in each case, as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all necessary corporate power laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and authority except as enforcement thereof is subject to execute, deliver and perform its obligations general principles of equity (regardless of whether enforcement is considered in respect of the Transaction; a proceeding in equity or at law).
(iib) such The execution, delivery and performance of this Confirmation and the consummation of the Transaction contemplated hereby have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid do not and binding obligationwill not, enforceable against Counterparty in accordance whether with its termsor without the giving of notice or passage of time or both, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in constitute a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterpartyof, or any applicable law default or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed Repayment Event (as an Exhibit to Counterparty’s Annual Report on Form 10-K for defined in the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iiiPurchase Agreement) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation or imposition of any lien underlien, charge or encumbrance upon any properties or assets of Counterparty or any subsidiary thereof pursuant to the Agreements and Instruments (as defined in the Purchase Agreement), except for such agreement conflicts, breaches, defaults or instrumentRepayment Events (as defined in the Purchase Agreement) or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement), nor will such action result in any violation of (a) the provisions of the charter, by-laws or similar organizational document of Counterparty or any of its subsidiaries or (b) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity (as defined in the Purchase Agreement), except, in the case of clause (b) above, for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect (as defined in the Purchase Agreement).
(c) No consentfiling with, or authorization, approval, authorizationconsent, license, order, registration, qualification or order decree of, any Governmental Entity (as defined in the Purchase Agreement) is necessary or filing with, any governmental agency required for the performance by Counterparty of its obligations hereunder or body the consummation of the Transaction contemplated by this Confirmation or any court is required in connection with for the due execution, delivery or and performance by Counterparty of this Confirmation, except such as have been already obtained and excluding any filing, authorization, approval, consent, license, order, registration, qualification or made and such decree the failure of which to obtain or make would not have a Material Adverse Effect (as may be required under defined in the Securities Act or state securities lawsPurchase Agreement).
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty Each of it and its affiliates is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”as hereinafter defined)) , and Counterparty would be able to purchase a number of Shares equal to the product of the Number of Shares Options, and the Option Entitlement in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation Sections 42A, 42B, and 166 of the Companies ▇▇▇ ▇▇▇▇ of Bermuda (the “Companies Act”))incorporation.
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 [ ] of the Purchase Agreement (the “Purchase Agreement”) ), dated as of February 19August [ ], 20202024, between Counterparty and J.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, as representative of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument other than the Credit Agreement (as defined below) filed as an Exhibit exhibit to Counterparty’s most recently filed Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act)K, as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act Act, or state securities laws; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer or any of its affiliates solely as a result of it or any of such affiliates being financial institutions and/or broker-dealers. 39 Insert Dealer’s notice contact information.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual its knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares (not including (x) the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (y) any rules or regulations under the Exchange Act or (z) laws, rules, regulations or regulatory orders of any jurisdiction that are applicable solely as a result of Dealer’s and/or its affiliates’ activities, assets or businesses, other than Dealer’s activities in respect of the Transaction) would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, Shares in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on connection with the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker dealerTransaction.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(ji) On and immediately after the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct the business of Counterparty, and Counterparty’s entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, or does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern; (E) Counterparty is not as of the Trade Date, and Counterparty shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(kj) Prior to the Trade Date, [Counterparty represents and warrants that Counterparty’s board of directors it has authorized received, read and understands the Transaction OTC Options Risk Disclosure Statement and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.Standardized Options”.]40
Appears in 1 contract
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 1927, 2020, 2024 between Counterparty and ▇.▇. ▇▇▇▇▇▇ Sachs & Co. Securities LLC, BofA Securities, Inc., Citigroup Global Markets Inc. and ▇▇▇▇▇ Fargo Securities, LLC, as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are true and correct on and as of the Trade Date and the Premium Payment Date and are hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date (or such other date as specified below) that:
(ia) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(b) In lieu of the representations representation set forth in Section 3(a)(iii) of the Agreement, neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(c) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(d) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(e) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(f) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) To the knowledge of Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(h) To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on the Exchange; provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of of, or transactions in, common equity securities of a U.S. domestic issuers incorporated corporation listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(ih) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(i) The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(j) As of and immediately after each of the Trade Date and the Premium Payment Date, (A) the value of the total assets of Counterparty is greater than the sum of the total liabilities (including contingent liabilities) and the capital (as such terms are defined in Section 154 and Section 244 of the General Corporation Law of the State of Delaware) of Counterparty, (B) the capital of Counterparty is adequate to conduct its business, and its entry into the Transaction will not impair its capital, (C) Counterparty has the ability to pay its debts and obligations as such debts mature and does not intend to, and does not believe that it will, incur debt beyond its ability to pay as such debts mature, (D) Counterparty will be able to continue as a going concern, (E) Counterparty is not as of the Trade Datenot, and Counterparty shall will not be after giving effect to the transactions contemplated herebybe, “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (F) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the its jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a capital distribution. Counterparty further acknowledges that, pursuant to the Trade Dateprovisions of the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), the Counterparty will be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar restrictions under programs or facilities established in the future. Accordingly, Counterparty represents and warrants that neither it nor any of its subsidiaries has applied for, and throughout the term of this Transaction shall not apply, for a loan, loan guarantee, direct loan (as that term is defined in the CARES Act) or other investment, or to receive any financial assistance or relief (howsoever defined) under any program or facility that (a) is established under applicable law (whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement thereunder), as a condition of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief, that Counterparty or any of its subsidiaries agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any equity security of Counterparty’s board , and that it has not, as of directors has authorized the date specified in such condition, made a capital distribution or will not make a capital distribution (collectively, “Restricted Financial Assistance”); provided, that Counterparty may apply for Restricted Financial Assistance if Counterparty either (a) determines, based on the advice of outside counsel of national standing, that the terms of the Transaction and approved would not cause Counterparty to fail to satisfy any condition for application for or receipt or retention of such loan, loan guarantee, direct loan (as that term is defined in the CARES Act), investment, financial assistance or relief based on the terms of the program or facility as of the date of such advice or (b) delivers to Dealer evidence of a waiver or other guidance from a governmental authority with jurisdiction for such program or facility that the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees is permitted under such program or facility (either by specific reference to deliver the Transaction or by general reference to Dealer a copy transactions with attributes of the resolutions Transaction in all relevant respects). Counterparty further represents and warrants that the Premium is not being paid, in whole or in part, directly or indirectly, with funds received under or pursuant to any program or facility, including the U.S. Small Business Administration’s “Paycheck Protection Program”, that (a) is established under applicable law (whether in existence as of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade DateDate or subsequently enacted, neither Issuer nor adopted or amended), including without limitation the CARES Act and the Federal Reserve Act, as amended, and (b) requires under such applicable law (or any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (includingregulation, without limitationguidance, by means of any cash-settled interpretation or other derivative instrumentpronouncement of a governmental authority with jurisdiction for such program or facility) purchase, offer that such funds be used for specified or enumerated purposes that do not include the purchase of this Transaction (either by specific reference to purchase, place any bid this Transaction or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit by general reference to transactions with the attributes of beneficial interest this Transaction in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandumall relevant respects).
Appears in 1 contract
Sources: Call Option Transaction (Progress Software Corp /Ma)
Representations and Warranties of Counterparty. Each of the representations and warranties of Counterparty set forth in Section 1 of the Purchase Agreement (the “Purchase Agreement”) dated as of February 19[__], 20202025, between among Counterparty and ▇▇▇▇▇▇▇ Sachs & Co. LLC[ ] and [ ], as representative representatives of the Initial Purchasers party thereto (the “Initial Purchasers”), are is true and correct and are is hereby deemed to be repeated to Dealer as if set forth herein. Counterparty hereby further represents and warrants to Dealer on the date hereof and on and as of the Premium Payment Date Date, in lieu of the representations set forth in Section 3(a) of the Agreement, that:
(i) Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction; (ii) such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; (iii) and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
(bii) In lieu of the representations set forth in Section 3(a)(iii) of the Agreement, neither Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws by‑laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument filed as an Exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December 31, 2019 (other than agreements or instruments filed as exhibits pursuant to Item 601(b)(10)(iii) of Regulation S-K under the Securities Act), as updated by any subsequent filings, in each case to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is boundbound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.
(ciii) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws.
(div) Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ev) Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the Commodity Exchange Act).
(fvi) Counterparty is not, on the date hereof, in possession aware of any material non-public information with respect to Counterparty or the Shares.
(g) Counterparty’s filings under the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable securities laws that are required to be filed have been filed and, as of the respective dates thereof and as of the Trade Date, there is no misstatement of material fact contained therein or omission of a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(hvii) To the knowledge of Counterparty’s actual knowledge, no U.S. state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) SharesShares (except for filings of any Form 13F, in each case, other than U.S. federal securities laws generally applicable to transactions relating to common equity securities of U.S. domestic issuers listed on Schedule 13D or Schedule 13G under the ExchangeExchange Act); provided that Counterparty makes no representation or warranty regarding any such requirement that is applicable generally to the ownership of common equity securities of U.S. domestic issuers listed on the Exchange by Dealer or any of its affiliates solely as a result of it or any of such affiliates being a financial institution or broker broker-dealer.
(iviii) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million.
(jix) The assets of Counterparty is do not constitute “plan assets” under the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law.
(x) On each of the Trade Date, the Premium Payment Date and Counterparty shall not be immediately after giving effect to the transactions Transaction on the Premium Payment Date, (A) the present fair market value (or present fair saleable value) of the total assets of Counterparty is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of Counterparty as they mature and become absolute, (B) the capital of Counterparty is adequate to conduct its business in the manner contemplated herebyin its public filings under the Exchange Act and to enter into the Transaction, (C) Counterparty has the ability to pay its debts and obligations as such debts mature, (D) Counterparty is not “insolvent” (as such term is defined in under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and (E) Counterparty would be able to purchase a number of Shares equal to the Number of Shares with respect to the Transaction in compliance with the laws of the jurisdiction of Counterparty’s incorporation or organization (including without limitation the adequate surplus and capital requirements of Sections 42A, 42B, 154 and 166 160 of the Companies ▇▇▇ ▇▇▇▇ General Corporation Law of Bermuda (the “Companies Act”)State of Delaware).
(k) Prior to the Trade Date, Counterparty represents that Counterparty’s board of directors has authorized the Transaction and approved the Transaction and any related hedging activity for purposes of Chapter 110F of Massachusetts General Laws and agrees to deliver to Dealer a copy of the resolutions of Counterparty’s board of directors covering the foregoing authorization and approvals.
(l) On the Trade Date, neither Issuer nor any “affiliate” or “affiliated purchaser” (each as defined in Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) of Issuer shall directly or indirectly (including, without limitation, by means of any cash-settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares, except for any privately negotiated repurchase of Shares effected through one of the Initial Purchasers or its affiliate, as Counterparty’s agent, described under “Use of Proceeds” in the Offering Memorandum.
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Sources: Call Option Transaction (Impinj Inc)