Representations and Warranties of the Placement Agent. The Placement Agent represents and warrants to the Issuer that: 4.1 The Placement Agent is duly organized and validly exists as a limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to enter into this Agreement. 4.2 This Agreement, when executed by the Placement Agent, will have been duly authorized and will be a valid and binding agreement of the Placement Agent, enforceable in accordance with its terms. 4.3 The consummation of the transactions contemplated herein and those contemplated by the Registration Statement will not result in a breach or violation of any order, rule, or regulation directed to the Placement Agent by any court, any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), or any administrative agency having jurisdiction over the Placement Agent or its affiliates. 4.4 The Placement Agent is, and during the term of this Agreement will be, duly registered as a broker dealer pursuant to the provisions of the Exchange Act, a member in good standing with FINRA, and duly registered as a broker dealer in any state where offers are made by the Placement Agent. The Placement Agent will comply with all applicable federal and state securities laws, the published rules and regulations thereunder, and FINRA rules. 4.5 This Agreement, or any supplement or amendment hereto, may be filed with the Commission or FINRA, if such filing should be required, and may be filed with and may be subject to the approval of applicable federal and applicable state securities regulatory agencies, if required. 4.6 The Placement Agent has established and implemented anti-money laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions in connection with the sale of Securities. 4.7 Neither the Placement Agent nor any of its executive officers, directors, general partners, managing members, or officers involved in the offering, registered representatives acting on behalf of the Placement Agent or persons who own 20.0% or more of the Placement Agent or any person receiving any direct or indirect compensation from the Placement Agent with respect to the Offering: 4.7.1 Has been convicted, within ten (10) years of any Applicable Date of any felony or misdemeanor that was: (a) In connection with the purchase or sale of any security; (b) Involving or making of any false filing with the Commission; or (c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities. 4.7.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice: (a) In connection with the purchase or sale of any security; (b) Involving the making of any false filing with the Commission; or (c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities. 4.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that: (a) As of any Applicable Date, bars the person from: (i) Association with an entity regulated by such commission, authority, agency, or officer; (ii) Engaging in the business of securities, insurance, or banking; or (iii) Engaging in savings association or credit union activities. (b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date. 4.7.4 Is subject to an order of the Commission pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or (f) of the Investment Advisers Act, that, as of any Applicable Date: (a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser; (b) Places limitations on the activities, functions or operations of such person; or (c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock. 4.7.5 Is subject to any order of the Commission entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of: (a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or (b) Section 5 of the Securities Act. 4.7.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade. 4.7.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued. 4.7.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations. 4.8 The representations and warranties made in this Section 4 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrue.
Appears in 1 contract
Sources: Placement Agent Agreement (Reliance Global Group, Inc.)
Representations and Warranties of the Placement Agent. The Placement Agent of the Offering represents and warrants to the Issuer Company and to each Selected Dealer, if any, that:
4.1 (a) The Placement Agent is a corporation duly organized organized, validly existing and validly exists as a limited liability company in good standing under the laws of the State of Delaware jurisdiction in which it is incorporated and it has all requisite power and authority to enter into this AgreementAgreement and to carry out its obligations hereunder. The Placement Agent is duly qualified as a foreign corporation in those jurisdictions wherein the failure to so qualify would have a material adverse effect on its business or properties.
4.2 (b) This AgreementAgreement has been duly authorized, when executed and delivered by the Placement Agent, will have been duly authorized Agent and will be on its behalf and constitutes a valid and legally binding agreement of obligation enforceable against the Placement Agent, enforceable Agent in accordance with its terms.
4.3 (c) The execution and delivery of this Agreement, the observance and performance hereof and the consummation of the transactions contemplated herein hereby and those contemplated by the Registration Statement Memorandum do not and will not result in a any breach or violation of any order, ruleof, or regulation default under, any instrument or agreement by which the Placement Agent is bound or violate any law or order directed to the Placement Agent by of any court, court or any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), body or any administrative agency having jurisdiction over the Placement Agent or over its affiliatesproperty.
4.4 (d) The Placement Agent is, and during the term of this Agreement will be, each Selected Dealer (as defined below in Section 6) are duly registered as a broker dealer with the Securities and Exchange Commission pursuant to the provisions Securities Exchange Act of 1934, as amended, and no proceeding has been initiated to revoke any of such registrations; the Exchange Act, a member Placement Agent and each Selected Dealer are members in good standing with FINRAof the National Association of Securities Dealers, Inc. (the "NASD"); the Placement Agent and each Selected Dealer are duly registered as broker-dealers under the applicable statutes, if any, in each state in which the Placement Agent proposes to offer or sell the Shares where such registration is required; and the Placement Agent will enter into a broker Selected Dealer Agreement with each Selected Dealer.
(e) The Placement Agent shall maintain all broker-dealer registrations, referred to above in paragraph (d), throughout the period in which Shares are offered and sold; the Placement Agent has complied and will comply with all broker-dealer requirements applicable to this transaction; the Placement Agent is not in violation of any state where offers are made by order of any court or regulatory authority applicable to it with respect to the sale of the Shares; and, if the Placement Agent becomes aware that any Selected Dealer has failed to maintain all applicable broker-dealer registrations or to comply with all broker-dealer requirements applicable to this transaction, the Placement Agent will take such action as is necessary to ensure that such Selected Dealer no longer participates in the offer and sale of Shares described herein and to terminate the Selected Dealer Agreement between the Placement Agent and such Selected Dealer.
(f) Pursuant to the Placement Agent's appointment made herein, the Placement Agent and each Selected Dealer will conduct the Offering in compliance with the requirements of Regulation D and, in this regard, the Placement Agent and, to the extent applicable to it, each Selected Dealer will have during the course of the Offering, and to the extent any representations other than those set forth in the Memorandum are made, refrained from making any untrue statement of a material fact and not have omitted to state a material fact required to be stated or necessary to make any statement made not misleading concerning the Offering or any matters set forth in or contemplated by the Memorandum. The Placement Agent will comply have refrained from offering, offering for sale or selling the Shares by means of: (a) any advertisement or other communication mentioning the Shares published in any newspaper, magazine or similar medium or broadcast over television or radio; or (b) any seminar or meeting announced by means of any kind of general solicitation or general advertising; or (c) any letter, circular, notice or other written communication, unless the Placement Agent has reasonable grounds to believe and, in fact, does believe that each person to whom the communication is directed is qualified pursuant to the financial suitability requirements set forth in the Memorandum and the communication is accompanied or preceded by the Memorandum or contains an undertaking to provide the Memorandum upon request. Prior to the sale of any of the Shares, the Placement Agent will have reasonably believed and have a reasonable basis and evidence to believe that each subscriber and his duly appointed purchaser representative, if any, met the suitability and other investor standards set forth in the Memorandum and in the applicable portion of Rule 506 of Regulation D and the Placement Agent will maintain appropriate records substantiating the foregoing. In the event that the Placement Agent or any Selected Dealer utilized any sales materials other than the Memorandum, the Placement Agent will have refrained from providing any such materials to any offeree of the Shares or his purchaser representative unless such materials are accompanied or preceded by the Memorandum and were permitted for use in connection with all the Offering under applicable federal and state securities lawslaws and not represented in any such materials or otherwise that any such materials have been approved or authorized by the Company. The Placement Agent will have provided each offeree with a copy of the Memorandum and the exhibits thereto during the course of the Offering. Until the Closing Date, if any event affecting the Company or the Placement Agent should occur that the Company or its counsel, the published rules and regulations thereunder, and FINRA rules.
4.5 This Agreement, Placement Agent or any its counsel believe should be set forth in a supplement or amendment hereto, may be filed with the Commission or FINRA, if such filing should be required, and may be filed with and may be subject to the approval Memorandum, the Placement Agent will have promptly distributed such supplement or amendment to persons who have previously received a copy of applicable federal the Memorandum from the Placement Agent and applicable state securities regulatory agencieswho continue to be interested in the Offering and further included such supplement or amendment in all further deliveries of the Memorandum. The Company shall at its own expense prepare and furnish the Placement Agent with a reasonable number of copies of such supplement or amendment for such distribution. During the course of the Offering, if requiredthe Placement Agent will have refrained from duplicating any of the Offering documentation without the prior written consent of the Company; and the Placement Agent will have accounted for each copy of the Memorandum distributed during the course of the Offering by maintaining a record of each person to whom it has delivered a copy of the Memorandum.
4.6 The Placement Agent has established and implemented anti-money laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions in connection with the sale of Securities.
4.7 (g) Neither the Placement Agent nor any of its executive officers, directors, general partners, managing members, or officers involved in the offering, registered representatives acting is authorized to make any representation on behalf of the Placement Agent Company other than those contained in the Memorandum or persons who own 20.0% or more of any additional information provided by the Company nor is the Placement Agent or any person receiving of its representatives authorized to act as the agent or representative of the Company in any direct or indirect compensation from capacity, except as expressly set forth herein and the Placement Agent with respect shall deliver to the Offering:
4.7.1 Has been convicted, within ten (10) years Company on the Closing Date a certificate executed by a responsible officer of any Applicable Date the Placement Agent firm to the effect that it has complied with the foregoing to the best of any felony or misdemeanor that was:the knowledge of the officer executing the certificate on the Placement Agent's behalf based upon reasonable investigation.
(ah) In connection with the purchase event that, on or sale of any security;
(b) Involving or making before the Closing Date, the Placement Agent becomes aware of any false filing with statement of a fact or representation by any subscriber in a Subscription Agreement, the Commission; or
(c) Arising out of Placement Agent shall promptly inform the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
4.7.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as Company of such Applicable Datefalse statement of fact, restrains or enjoins unless at the time it becomes aware of such person from engaging or continuing in any conduct or practice:
(a) In connection with false statement the purchase or sale of any security;
(b) Involving subscriber has communicated to the making of any false filing with the Commission; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
4.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, Placement Agent or the National Credit Union Administration that:
(a) As of any Applicable Company his intent to correct such false statement prior to the Closing Date, bars the person from:.
(i) Association The Placement Agent and each of its registered representatives participation in its solicitation efforts will comply with an entity regulated the prohibition against "general solicitations" and "general advertising" imposed by such Rule 502(c) of Regulation D.
(j) The Placement Agent shall inform the Company of each date on which it first receives any subscription from prospective investors in each particular state where the Shares are offered and shall not offer the Shares for sale in any state in which the offer or sale requires prior notice or clearance from any state securities commission, authority, agency, bureau or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activitiesagency thereon.
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
4.7.4 Is subject to an order of the Commission pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or (f) of the Investment Advisers Act, that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
4.7.5 Is subject to any order of the Commission entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
4.7.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
4.7.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
4.7.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
4.8 The representations and warranties made in this Section 4 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrue.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent represents and warrants to the Issuer thatCompany as follows:
4.1 (a) The Placement Agent is duly organized and validly exists as a limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to enter into this Agreement.
4.2 This Agreement, when executed by the Placement Agent, will have been duly authorized and will be a valid and binding agreement of the Placement Agent, enforceable in accordance with its terms.
4.3 The consummation of the transactions contemplated herein and those contemplated by the Registration Statement will not result in a breach or violation of any order, rule, or regulation directed to the Placement Agent by any court, any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), or any administrative agency having jurisdiction over the Placement Agent or its affiliates.
4.4 The Placement Agent is, and during the term of this Agreement will be, duly registered as a broker broker-dealer pursuant to the provisions of the Exchange Actunder applicable federal and state law, is a member in good standing with FINRAof FINRA and has met and will continue to meet all registration, licensing, financial and duly registered as a broker dealer reporting requirements it is required to meet under applicable federal and state laws and regulations in any state where offers are made by order to provide the services the Placement Agent. Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the Offering.
(b) The Placement Agent will comply with all applicable federal and state securities laws, the published rules and regulations thereundernot provide any service or engage in any activity, and FINRA rules.
4.5 This Agreementit will not permit any of its employees, agents, representatives or affiliates (including any supplement Selected Dealer) to provide any service or amendment heretoengage in any activity, may be filed with the Commission whether pursuant to this Agreement or FINRA, if such filing should be required, and may be filed with and may be subject to the approval of applicable federal and applicable state securities regulatory agencies, if required.
4.6 The Placement Agent has established and implemented anti-money laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions otherwise in connection with the sale of Securitiesthe Units, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.
4.7 Neither (c) The Placement Agent agrees that any employees, agents or representatives of any of the Placement Agent's affiliates that provide any services to the Company under this Agreement or otherwise in connection with the sale of the Units will be considered, for purposes of the Placement Agent's agreements, representations, warranties and obligations under this Agreement to also be employees, agents, or representatives of the Placement Agent. FIG Partners, L.L.C. January 25, 2010
(d) Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Units as described in the Offering Documents shall control the conduct of the sale of the Units, and neither the Placement Agent nor any of its executive officersrespective employees, directorsagents, general partnersrepresentatives or affiliates shall take any action in connection with the sale of the Units contrary to those terms and conditions.
(e) In connection with or during the course of the sale of the Units, managing membersneither the Placement Agent nor any employee, agent, representative or officers involved in the offering, registered representatives acting on behalf affiliate of the Placement Agent will make any representation or persons who own 20.0% provide any information to any Purchaser or more potential Purchaser for the Units other than the representations and information contained in the Offering Documents or other information specifically approved by the Company's Chief Executive Officer or Chief Financial Officer.
(f) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and is a valid and binding agreement and obligation of the Placement Agent or any person receiving any direct or indirect compensation from the Placement Agent with respect to the Offering:
4.7.1 Has been convicted, within ten (10) years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving or making of any false filing with the Commission; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securitiesAgent.
4.7.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the Commission; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
4.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activities.
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
4.7.4 Is subject to an order of the Commission pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or (f) of the Investment Advisers Act, that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
4.7.5 Is subject to any order of the Commission entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
4.7.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
4.7.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
4.7.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
4.8 The representations and warranties made in this Section 4 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrue.
Appears in 1 contract
Representations and Warranties of the Placement Agent. The Placement Agent represents and warrants to the Issuer that:
4.1 5.1 The Placement Agent is a duly organized and validly exists as a California limited liability company in good standing under the laws of the State of Delaware and has all requisite power and authority to enter into this Agreement.
4.2 5.2 This Agreement, when executed by the Placement Agent, will have been duly authorized and will be a valid and binding agreement of the Placement Agent, enforceable in accordance with its terms.
4.3 5.3 The consummation of the transactions contemplated herein and those contemplated by the Registration Statement Offering Circular will not result in a breach or violation of any order, rule, rule or regulation directed to the Placement Agent by any court, FINRA or any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), body or any administrative agency having jurisdiction over the Placement Agent or its affiliates.
4.4 5.4 The Placement Agent is, and during the term of this Agreement will be, duly registered as a broker broker-dealer pursuant to the provisions of the Exchange Act, a member in good standing with FINRA, and a broker or dealer duly registered as a broker broker-dealer in any state where offers are made by the Placement Agent. The Placement Agent will comply with all applicable federal and state securities laws, regulations, requirements and rules of the published rules Securities Act, the Exchange Act, applicable state law and regulations thereunder, FINRA. The Placement Agent has all required licenses and FINRA rulespermits.
4.5 5.5 The Placement Agent has reasonable grounds to believe, based on information made available to it by the Issuer, that all material facts are adequately and accurately disclosed in the Offering Circular and provide an adequate basis for evaluating an investment in the Securities.
5.6 This Agreement, or any supplement or amendment hereto, may be filed by the Issuer with the Commission SEC or FINRA, if such filing should be required, and may be filed with with, and may be subject to the approval of any applicable federal and applicable state securities regulatory agencies, if required.
4.6 5.7 No agreement will be made by the Placement Agent with any person permitting the resale, repurchase or distribution of the Securities purchased by such person.
5.8 The Placement Agent has established and implemented anti-money money-laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions in connection with the sale of Securities.
4.7 Neither 5.9 In the event the Placement Agent nor becomes a Selling Group Member, the Placement Agent shall comply with all requirements of the Selling Group Members as set forth in the Soliciting Dealer Agreement.
5.10 As of any Applicable Date, that none of the Placement Agent, its executive officers, directors, general partners, managing members, members or officers involved participating in the offering, registered representatives acting on behalf of the Placement Agent or persons who own 20.0% or more of the Placement Agent Offering or any person receiving any direct or indirect compensation from the Placement Agent a commission with respect to the Offering:
4.7.1 5.10.1 Has been convicted, within ten (10) 10 years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving or the making of any false filing with the CommissionSEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, adviser or paid solicitor of purchasers of securities.
4.7.2 5.10.2 Is subject to any order, judgment, judgment or decree of any court of competent jurisdiction, entered within five (5) 5 years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the CommissionSEC; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, adviser or paid solicitor of purchasers of securities.
4.7.3 5.10.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, Commission or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, agency or officer;
(ii) Engaging in the business of securities, insurance, insurance or banking; or
(iii) Engaging in savings association or credit union activities.; or
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, manipulative or deceptive conduct entered within ten (10) 10 years before any Applicable Date.
4.7.4 5.10.4 Is subject to an order of the Commission SEC pursuant to Section sections 15(b) or 15B(c) of the Exchange Act or Section section 203(e) or (f) of the Investment Advisers Act, Act that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, dealer or investment adviseradvisor;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
4.7.5 5.10.5 Is subject to any order of the Commission SEC entered within five (5) 5 years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section section 17(a)(1) of the Securities Act, Section section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section section 15(c)(1) of the Exchange Act, Act and Section section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
4.7.6 5.10.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
4.7.7 5.10.7 Has filed (as a registrant or issuer), or was or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission SEC that, within five (5) 5 years of any Applicable Date, was the subject of a refusal order, stop order, order or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
4.7.8 5.10.8 Is subject to a United States Postal Service false representation order entered within five (5) 5 years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
4.8 5.10.9 The Placement Agent agrees to immediately notify the Issuer if there is a violation or potential violation of the representations set forth in this Section 5.10 during the Offering Period.
5.11 The representations and warranties made in this Section 4 5 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrue.
Appears in 1 contract
Sources: Placement Agent Agreement (Alternative Ballistics Corp)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to Company the Issuer thatfollowing which are true and correct as of the date hereof, and which shall be true and correct at all times during the period the Offering shall remain open, both as to the Placement Agent and as to any affiliate, broker, agent, employee or other representative (collectively, "Agents") hired, contracted or engaged by the Placement Agent in connection with the Offering:
4.1 a. The Placement Agent and each Agent is duly organized organized, validly existing and validly exists as a limited liability company in good standing under the laws of its state of organization, and are duly qualified to transact business as a foreign limited liability company and is in good standing under the State laws of Delaware and has all requisite power and authority each jurisdiction where the location of its properties or the conduct of their respective businesses makes such qualification necessary, except where the failure to enter into this Agreement.
4.2 This Agreement, when executed by the Placement Agent, will be so qualified would not have been duly authorized and will be a valid and binding agreement of the Placement Agent, enforceable in accordance with its terms.
4.3 The consummation of the transactions contemplated herein and those contemplated by the Registration Statement will not result in a breach or violation of any order, rule, or regulation directed to the Placement Agent by any court, any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), or any administrative agency having jurisdiction over material adverse effect on the Placement Agent or its affiliatesbusiness, any Agent or its business, or this Offering.
4.4 b. The Placement Agent isand, to the extent required by law, each Agent are and during the term of this Agreement will be, at all times be duly registered licensed as a broker dealer with all applicable state and federal licensing agencies where such registration may be necessary or appropriate to conduct the Offering provided for herein.
c. Assuming the truth of the representations and warranties of the Company, and the Company's compliance with the following provisions of law, the Shares will be offered and sold pursuant to the provisions registration exemption provided by Regulation D and Section 4(2) of the Exchange Act, a member in good standing with FINRA, and duly registered Act as a broker dealer in transaction not involving a public offering and the requirements of any state where offers are made by the Placement Agent. The Placement Agent will comply with all other applicable federal and state securities laws, laws and the published respective rules and regulations thereunder, and FINRA rulesthereunder in those jurisdictions in which the Placement Agent notifies the Company that the Shares are being offered for sale.
4.5 This Agreement, or any supplement or amendment hereto, may be filed with the Commission or FINRA, if such filing should be required, and may be filed with and may be subject to the approval of applicable federal and applicable state securities regulatory agencies, if required.
4.6 The Placement Agent has established and implemented anti-money laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions in connection with the sale of Securities.
4.7 d. Neither the Placement Agent nor any of its executive officers, directors, general partners, managing membersAgents have taken nor will any of them knowingly take any action which conflicts with the conditions and requirements of, or officers involved which would make unavailable with respect to the Offering, the exemption(s) from registration available pursuant to Regulation D, Rule 506, under Section 4(2) of the Act and knows of no reason why any such exemption would be otherwise unavailable to it.
e. The Placement Agent and each of its Agents have conducted, are conducting, and shall conduct the Offering in such a manner that it complies with, and has taken no action, are taking no action, and shall not take any action to cause the offeringOffering not to comply with, registered representatives acting on behalf Regulation D, the Regulations, Rule 506 under section 4(2) of the Act, or any other applicable federal and/or state securities laws, rules, or regulations.
f. The Placement Agent and each Agent have all requisite power and authority to conduct their respective businesses as presently conducted and as proposed to be conducted in this Offering, and to enter into and perform their obligations under this Agreement. This Agreement has been duly authorized, executed and delivered and constitutes valid and binding obligations of the Placement Agent, enforceable against the Placement Agent in accordance with its respective terms, subject to any applicable bankruptcy, insolvency or persons who own 20.0% other laws affecting the rights of creditors generally and to general equitable principles and the availability of specific performance.
g. None of the execution and delivery of, or more performance by the Placement Agent under this Agreement or the consummation of the transactions herein contemplated conflicts with or violates any license, permit, judgment, decree, order, statute, rule or regulation applicable to the Placement Agent or any person receiving any direct or indirect compensation from the Placement Agent with respect to the Offering:
4.7.1 Has been convicted, within ten (10) years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale of any security;
(b) Involving or making of any false filing with the Commission; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securitiesits assets.
4.7.2 Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains or enjoins such person from engaging or continuing in any conduct or practice:
(a) In connection with the purchase or sale of any security;
(b) Involving the making of any false filing with the Commission; or
(c) Arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser, or paid solicitor of purchasers of securities.
4.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activities.
(b) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
4.7.4 Is subject to an order of the Commission pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or (f) of the Investment Advisers Act, that, as of any Applicable Date:
(a) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
4.7.5 Is subject to any order of the Commission entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
4.7.6 Is suspended or expelled from membership in, or suspended or barred from association with, a member of a registered national securities exchange or a registered national or affiliated securities association for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
4.7.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
4.7.8 Is subject to a United States Postal Service false representation order entered within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations.
4.8 The representations and warranties made in this Section 4 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrue.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Bronze Marketing Inc)
Representations and Warranties of the Placement Agent. The Placement Agent hereby represents and warrants to the Issuer thatCompany and agrees as follows:
4.1 The Placement Agent is (a) This Agreement has been duly organized and validly exists as a limited liability company in good standing under the laws of the State of Delaware authorized, executed and has all requisite power and authority to enter into this Agreement.
4.2 This Agreement, when executed delivered by the Placement AgentAgent and is a valid, will have been duly authorized binding and will be a valid and binding enforceable agreement of the Placement Agent, enforceable in accordance with its terms.
4.3 The (b) Neither the execution and delivery of this Agreement, and the performance and consummation of the transactions contemplated herein and those contemplated by the Registration Statement in this Agreement will not result in a any breach or violation of any order, ruleof the terms and conditions of, or regulation constitute a default under, the Placement Agent's Articles of Incorporation or Bylaws, or any indenture, agreement, or instrument by which the Placement Agent is a party or violate any order directed to the Placement Agent by of any court, court or any federal or state regulatory body, Financial Industry Regulatory Authority, Inc. (“FINRA”), body or any administrative agency having jurisdiction over the Placement Agent or its affiliates.
4.4 (c) The Placement Agent is, and during the term of this Agreement will be, duly registered as a broker dealer pursuant to the provisions of the Exchange Act, represents that it is a member in good standing with FINRAof the National Association of Securities Dealers, Inc. ("NASD") and duly registered as a broker broker-dealer in any state where offers with the Commission, or that it is a foreign broker-dealer not eligible for membership under Section 1 of the Bylaws of the NASD who agrees to make no sales within the United States, its territories or possessions or to persons who are made nationals thereof or residents therein. The Placement Agent's attention is called to the following: (a) Article III, Section 1 of the Rules of Fair Practice of the NASD and the interpretations of said Section promulgated by the Board of Governors of the NASD; (b) Section 10(b) of the Exchange Act and Rule 10b-9 of the general rules and regulations promulgated under the Exchange Act; (c) Section 15 of the Exchange Act and Rule 15c2-4 of the general rules and regulations promulgated under the Exchange Act; and (d) Rule 15c2-8 of the general rules and regulations promulgated under the Exchange Act and Securities Act Release No. 4968 requiring the distribution of a Preliminary Prospects to all persons reasonably expected to be purchasers of Units from the Placement Agent at least 48 hours prior to the time it expects to mail confirmations of purchase. The Placement Agent. , if a member of the NASD, by signing this Agreement, acknowledges that its is familiar with the cited law, rules and releases and agrees that it will not directly and/or indirectly violate any provisions of applicable law in connection with its participation in the distribution of the Units.
(d) The Placement Agent will comply with all applicable federal not, until advised by the Company in writing or by wire that the offering of Units has been distributed and state securities lawsclosed, bid for or purchase Shares or Warrants in the published rules and regulations thereunder, and FINRA rulesopen market or otherwise make a market in the Shares or Warrants or otherwise attempt to induce others to purchase Shares or Warrants in the open market.
4.5 This Agreement, or any supplement or amendment hereto, may be filed with the Commission or FINRA, if such filing should be required, and may be filed with and may be subject to the approval of applicable federal and applicable state securities regulatory agencies, if required.
4.6 The Placement Agent has established and implemented anti-money laundering compliance programs, in accordance with FINRA Rule 3310 and Section 352 of the Money Laundering Abatement Act and Section 326 of the Patriot Act of 2001, which are reasonably expected to detect and cause reporting of suspicious transactions in connection with the sale of Securities.
4.7 (e) Neither the Placement Agent nor its directors or officers (or any other person serving in a similar capacity):
(1) Has been convicted within ten years prior hereto of its executive officers, directors, general partners, managing membersany crime or offense involving the purchase or sale, or officers involved any conduct or practice in the offering, registered representatives acting on behalf of the Placement Agent or persons who own 20.0% or more of the Placement Agent or any person receiving any direct or indirect compensation from the Placement Agent with respect to the Offering:
4.7.1 Has been convicted, within ten (10) years of any Applicable Date of any felony or misdemeanor that was:
(a) In connection with the purchase or sale sale, of any security;
(b) Involving or ; involving the making of any a false filing statement with the Commission; or
(c) Arising or has been convicted or charged with a crime or offense arising out of the conduct of Placement Agent engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser, or paid solicitor of purchasers of securities.
4.7.2 (2) Is subject to any order, judgment, or decree of any court of competent jurisdiction, entered within five (5) years before any Applicable Date, that, as of such Applicable Date, restrains jurisdiction temporarily or enjoins permanently enjoining or restraining such person from engaging in or continuing in any conduct or practice:
(a) In practice in connection with the purchase or sale of any security;
(b) Involving ; involving the making of any a false filing statement with the Commission; or
(c) Arising or has been convicted or charged with a crime or offense arising out of the conduct of such person engaging in the business of an underwriter, broker, dealer, municipal securities dealer, or investment adviser, or paid solicitor of purchasers of securities.
4.7.3 Is subject to a final order of a state securities commission (or an agency or officer of a state performing like functions), a state authority that supervises or examines banks, savings associations or credit unions, a state insurance commission (or an agency or officer of a state performing like functions), an appropriate federal banking agency, the U.S. Commodity Futures Trading Commission, or the National Credit Union Administration that:
(a) As of any Applicable Date, bars the person from:
(i) Association with an entity regulated by such commission, authority, agency, or officer;
(ii) Engaging in the business of securities, insurance, or banking; or
(iii) Engaging in savings association or credit union activities.
(b3) Constitutes a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative, or deceptive conduct entered within ten (10) years before any Applicable Date.
4.7.4 Is subject to an order of the Commission entered pursuant to Section 15(b), 15B(a) or 15B(c) of the Exchange Act Act; has been found by the Commission to be a cause of any such order which is still in effect; or is subject to an order of the Commission entered pursuant to Section 203(e) or (f) of the Investment Advisers Act, that, as Act of any Applicable Date:1940.
(a4) Suspends or revokes such person’s registration as a broker, dealer, municipal securities dealer, or investment adviser;
(b) Places limitations on the activities, functions or operations of such person; or
(c) Bars such person from being associated with any entity or from participating in the offering of any p▇▇▇▇ stock.
4.7.5 Is subject to any order of the Commission entered within five (5) years before any Applicable Date, that, as of such Applicable Date, orders the person to cease Has been and desist from committing or causing a violation or future violation of:
(a) Any scienter-based anti-fraud provisions of the federal securities laws including, without limitation, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and 17 CFR 240.10b-5, Section 15(c)(1) of the Exchange Act, and Section 206(1) of the Investment Advisers Act, or any other rule or regulation thereunder; or
(b) Section 5 of the Securities Act.
4.7.6 Is is suspended or expelled from membership in, in a national or suspended regional securities dealers association or barred from association with, a member of a registered national securities exchange or a registered national or affiliated Canadian securities association exchange for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade.
4.7.7 Has filed (as a registrant or issuer), or was named as an underwriter in, any registration statement or Regulation A offering statement filed with the Commission that, within five (5) years of any Applicable Date, was the subject of a refusal order, stop order, or order suspending the Regulation A exemption or, is, as of any Applicable Date, the subject of an investigation or proceeding to determine whether a stop order or suspension order should be issued.
4.7.8 Is subject to a United States Postal Service false representation fraud order or is subject to any restraining order or preliminary injunction entered under Section 3007 of Title 30, United States Code, with respect to any conduct alleged to constitute postal fraud.
(6) Has been an underwriter or named as an underwriter of any securities covered by any registration statement which is the subject of any proceeding or examination under Section 8 of the Securities Act, or is the subject of any refusal order or stop order entered thereunder within five (5) years before any Applicable Date, or is, as of any Applicable Date, subject prior to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representationsdate hereof.
4.8 (f) To the Placement Agent's knowledge, no action or proceeding is pending against it or any of its officers or directors concerning its activities as a broker or dealer that would affect the Company's offering of the Units.
(g) The Placement Agent will offer the Units only in those states and in the quantities that are identified in the Blue Sky Memorandum from the Company's counsel to the Placement Agent that the offering of the Units has been qualified for sale under applicable state statutes and regulations.
(h) The Placement Agent, in connection with the offer and sale of the Units, and in the performance of its duties and obligations under this Agreement, agrees to use its best efforts to comply with all applicable federal laws, the laws of the states or other jurisdictions in which the Units are offered and sold, and the Rules and Regulations of the NASD.
(i) The Placement Agent will not make any offer or sale of Units unless the offer or sale is made in compliance with the Securities Act, the Rules of Fair Practice of the NASD, and the applicable securities or Blue Sky laws of jurisdictions in which offers or sales are made, and the rules and regulations thereunder. The Placement Agent agrees that it will not offer or sell Units to any subscriber unless it has reasonable grounds to believe that the investment in Units is suitable for the subscriber.
(j) The Placement Agent will, reasonably promptly after the closing of the offering of the Units, supply the Company with all information as the Company may reasonably request to be supplied to the securities commission of such states in which the Units have been qualified for sale. All of the above representations and warranties made in shall survive the performance or termination of this Section 4 are made as of the Effective Date and shall be continuing representations and warranties throughout the term of the Offering Period. In the event that any of these representations or warranties becomes untrue, the Placement Agent will immediately notify the Issuer in writing of the fact which makes the representation or warranty untrueAgreement.
Appears in 1 contract