Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants with, the Company that: (a) This Agreement has been duly authorized, executed and delivered by the Placement Agent and constitutes the legal, valid and binding obligation of the Placement Agent, enforceable against it in accordance with its terms, except insofar as enforcement of the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally. (b) The Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with the Company to ensure that the offering and sale of the Units will comply with the requirements of the Securities Act, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice of the Company with respect to the manner in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered by the Placement Agent, and the Placement Agent will not make an offer of Securities in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for the Placement Agent to offer or sell securities. (c) The Placement Agent is: (i) a registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered as a broker-dealer in each jurisdiction in which it is required to be registered as such in order to offer and sell the Units in such jurisdiction. (d) The Placement Agent has not and will not make an offer of Units (or of any securities, the offering of which may be integrated with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe. (e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating to the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading. (f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that: (i) the offeree is an Accredited Investor; and (ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations. (g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11) of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel. (h) The Placement Agent will periodically notify the Company of the jurisdiction in which the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35 (i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor. (j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandum.
Appears in 1 contract
Sources: Placement Agency Agreement (Sagemark Companies LTD)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents represents, warrants and warrants tocovenants to and agrees with the Company, at the date hereof, and covenants withas of each Closing, the Company thatas follows:
(a) This Agreement has been duly authorized, executed and delivered by the Placement Agent and constitutes the legal, valid and binding obligation of the Placement Agent, enforceable against it in accordance with its terms, except insofar as enforcement of the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.
(b) a. The Placement Agent will not conduct is duly and validly organized and is validly existing under the Placement in violation of applicable federal and state securities laws and will cooperate with the Company to ensure that the offering and sale of the Units will comply with the requirements jurisdiction of the Securities Actits incorporation, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice of the Company with respect to the manner in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered by the Placement Agent, and the Placement Agent will not make an offer of Securities in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
is (i) a registered broker-dealer registered with the SEC as such under the Exchange Act; , and no proceeding has been initiated to revoke such registration, (ii) a member in good standing of the NASD; and , (iii) registered as a broker-dealer in registered with the securities authorities of each jurisdiction in which it is required to be registered in connection with the offers or sales of the Offered Securities, and all such offers or sales will be made only by individuals licensed as such required by all applicable federal and state securities laws, and the Placement Agent agrees to maintain each of the foregoing memberships and registrations in good standing during the term hereof. The Placement Agent is in compliance with all rules and regulations under the Exchange Act and the NASD’s Conduct Rules;
b. Neither the Placement Agent, nor its directors, officers or beneficial owners of 10% or more of any class of its equity securities, has a record of conduct, which would cause the “bad boy” provisions of Rule 262 under the Securities Act to apply to the transactions contemplated by this Agreement;
c. This Agreement will be a valid and binding obligation of the Placement Agent enforceable in accordance with its terms subject to (i) due authorization, execution and delivery hereof by the Company; (ii) the enforcement of remedies under applicable bankruptcy, insolvency and other laws affecting creditors’ rights generally and moratorium laws from time to time in effect; (iii) general equitable principles which may limit the right to obtain the remedy of specific performance; and (iv) the public policy limitation on indemnification under federal securities laws. The execution and delivery of this Agreement, the observance and performance hereof, and the consummation of the transactions contemplated herein, does not and will not constitute a material breach or material default under, any instrument or agreement by which the Placement Agent is bound, and does not and will not contravene any existing material law, decree or order applicable to offer and sell the Units in such jurisdiction.Placement Agent;
(d) d. The Placement Agent has not made and will not make an offer or sale of Units (or of any securities, the offering of which may be integrated with the Placement) Offered Securities on the basis of any communications or documents relating to the Company or the Units Offered Securities, except such documents supplied or prepared by the Memorandum Company and delivered to potential Purchasers or to the exhibits thereto and documents described Placement Agent for use in making an offer or referred to therein (including sale of the Subscription Documents)Offered Securities, and the any cover letters referred to or transmittal letter in Section 2 hereof. Without limiting the generality respect of the foregoingforegoing that has been reviewed and approved by the Company;
e. The Placement agent will offer and sell the Offered Securities only to accredited investors, as that term is defined in Regulation D, and will retain appropriate records for a period of four years to evidence the Placement Agent’s conduct of the Offering in conformance with the requirements of that Regulation;
f. In making any offer or sale of the Offered Securities, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from shall comply with the ownership provisions of the Securities other than as set forth Act, the Exchange Act, and the applicable securities or “Blue Sky” laws of the jurisdictions in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The which Placement Agent will deliver a copy makes offers or sales of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.Offered Securities;
(e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating to the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.
(f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) g. The Placement Agent will exercise reasonable care to determine assure that prospective Investors the Purchasers to whom it sells the Offered Securities are not "underwriters" underwriters within the meaning of Section 2(112(a)(11) of the Securities Act, and in . In that connection will the Placement Agent will: (i) make reasonable inquiry to determine that the Purchaser is acquiring the Offered Securities for his, her or its own account for investment purposes; and (ii) obtain from each investor purchasing Purchaser a signed written agreement that the Offered Securities in will not be sold without registration under the Placement duly executed Subscription DocumentsSecurities Act, in the forms attached absence of an opinion of counsel to the Memorandum or otherwise Company that an exemption from registration is available and the Purchaser shall acknowledge the understanding that the Company has no intention to register the Offered Securities under the Securities Act, other than as expressly provided to in the Definitive Agreement between the Company and the Purchaser;
h. If the Placement Agent knows or has reason to believe that a Purchaser to whom it sells any Offered Securities relied upon the advice of a purchaser representative as defined in Rule 501(h) of Regulation D in connection with evaluating the merits and risks of a purchase of the Offered Securities, the Placement Agent will obtain and deliver to the Company (i) the Purchaser’s written acknowledgment that he or she used such representative in evaluating the merits and risks of the prospective investment; and (ii) a Purchaser Representative Questionnaire (in the form approved by the Company with the approval of the Placement Agent) completed and signed by such representative;
i. The Placement Agent and its counsel.authorized agents will offer to sell, or solicit offers to subscribe for or buy, the Offered Securities only in those states and other jurisdictions where the Company and its counsel or the Placement Agent’s counsel has advised that sales of the Offered Securities are permitted under applicable law and regulations; and
(h) j. The Placement Agent will periodically notify not offer the Company Offered Securities for sale or solicit any offers to purchase the Offered Securities, or otherwise negotiate with any person in respect of the jurisdiction in which Offered Securities, on the Securities are being offered by it or will be offered by it pursuant to this Agreementbasis of any advertisement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companiesarticle, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation notice or other inducement will be offered by the Placement Agent to communication published in any such firm newspaper, magazine, or to similar medium or broadcast over television or radio or hold any Investor seminar or meeting with respect to the Placement, other than as provided in this Agreement Offered Securities whose attendees have been invited by any general solicitation or as disclosed in the Memorandumgeneral advertising.
Appears in 1 contract
Sources: Placement Agreement (Guardian Technologies International Inc)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents represents, warrants and warrants toagrees with the Company, and covenants with, the Company for its benefit that:
(a) This the Placement Agent is a duly formed and validly existing limited liability company under the laws of the State of New York and has the requisite power and authority to conduct its business as contemplated by its organizational documents;
(b) the execution, delivery and performance of this Agreement has been duly authorized, executed and delivered by the Placement Agent has been duly authorized by all necessary action, and constitutes the legalupon execution and delivery hereof, valid this Agreement will be a valid, binding and binding enforceable obligation of the Placement Agent, enforceable against it ;
(c) the Placement Agent will offer the Shares for sale and will solicit offers to buy the Shares only in compliance with the procedures described in the Confidential Memorandum and this Agreement and in accordance with applicable law;
(d) as of the date hereof, no permit, consent, approval or authorization of, or declaration to, or filing with, any governmental or regulatory authority is required in connection with the (i) execution, delivery and performance of this Agreement and (ii) consummation of any of the transactions contemplated herein and in the Confidential Memorandum;
(e) neither the Placement Agent, nor any affiliate of the Placement Agent, nor any person acting on behalf of the Placement Agent or its termsaffiliates, shall offer the Shares in any jurisdiction, except insofar as enforcement of in compliance with the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.law in any such jurisdiction in which such offering is made;
(bf) The the Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with notify the Company to ensure that promptly of any occurrence of which it becomes aware which is material in the context of the offering and sale of the Units Shares, including any event which shall lead the Placement Agent to reasonably believe that the Confidential Memorandum is or will be misleading in any material respect, or which affects any of the representations, warranties, agreements and indemnities by the Placement Agent contained in this Agreement (or which would have affected any of the same if this Agreement had been entered into immediately thereafter), and will take such steps as may be reasonably requested by the Company to remedy and/or publicize the same;
(g) in offering Shares, the Placement Agent, in its agreements with the Sub-Placement Agents, will require that the applicable Sub-Placement Agents comply with the requirements provisions of the Securities Actall applicable rules and regulations relating to suitability of investors, including, without limitation, the general conditions contained provisions of Exchange Act Rule 15l-1 (“Regulation Best Interest”) (when and as applicable) and applicable laws of the jurisdiction of which such investor is a resident. The Placement Agent, in Regulation D its agreements with the Sub-Placement Agents, will require that the Sub-Placement Agents shall sell Shares only to those persons who are eligible to purchase such Shares as described in the Confidential Memorandum and only through those Sub-Placement Agents who are authorized to sell such Shares. The Placement Agent, in its agreements with the Sub-Placement Agents, shall require the applicable Sub-Placement Agents to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares;
(h) the Placement Agent shall maintain records reflecting the identity of all persons to which it offered and sold Shares as well information regarding the suitability of such Shares for such offerees and investors and the federal securities lawseligibility of such persons to invest in the Company consistent with the Confidential Memorandum. The Placement Agent shall retain such records for at least six years in accordance with applicable law and provide copies to the Company upon request;
(i) (i) the Placement Agent, in connection with each sale of Shares made by or through it, has complied, and will follow comply, with all applicable anti-money laundering laws and regulations, including without limitation the reasonable advice USA Patriot Act of 2001, as amended (collectively, the Company “Anti-Money Laundering Laws”); the Placement Agent has established and will maintain an anti-money laundering compliance program as required by the Anti-Money Laundering Laws, will conduct in relation to each Person who purchases Shares from or through it such due diligence investigations as may be required by the Anti-Money Laundering Laws, including investigations with respect to the manner in which legitimacy of the applicable purchaser (together with any beneficial owner represented by such purchaser) and the origin of the funds used by such purchaser (or beneficial owner) to offer purchase its Shares, and sell maintains, and will maintain, sufficient information to identify the Units so as to ensure that applicable purchaser (and any related beneficial owner) for purposes of the offering Anti-Money Laundering Laws; the Placement Agent will promptly provide the Company with such information (including copies of written investor representations and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered internal due diligence or investigatory reports prepared by the Placement Agent) as the Company may from time to time reasonably request to establish, or to demonstrate, compliance by the Company with any Anti- Money Laundering Laws that are now, or hereafter become, applicable to it in connection with the offering of the Shares (“Applicable AML Laws”); and the Placement Agent will cooperate in good faith with the Company to amend the offering procedures set forth herein and the Placement Agent’s duties hereunder in such manner as may from time to time be required for the Company to establish compliance with Applicable AML Laws;
(ii) the Placement Agent has used and will use commercially reasonable due diligence with respect to accepting as clients any investors of the Company who have purchased or will purchase through the Placement Agent and with respect to introducing investors to the Company, and to the best of the Placement Agent’s knowledge, such clients are of good business reputation and such clients’ funds used to purchase Shares were not make and will not be derived from, nor the product of, any criminal activity;
(iii) the Placement Agent will reasonably believe immediately prior to making any offer or sale of Shares that (A) any prospective investor (U.S. Person or non-U.S. Person, as defined in Regulation S under the Securities Act) solicited by the Placement Agent and investing in the Shares in reliance on Regulation D under the Securities Act is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act), with whom the Placement Agent or any person acting on its behalf, including any affiliate or designee, has a “substantive pre-existing relationship” (as such term is used in the regulatory regime relating to Regulation D under the Securities Act) and meets such other eligibility criteria as are set forth in the Confidential Memorandum and Subscription Agreement, and (B) any prospective investor who is not a U.S. Person (as such term is defined in Regulation S under the Securities Act) that is solicited by the Placement Agent and investing in the Shares in reliance on Regulation S under the Securities Act meets the eligibility criteria set forth in the Confidential Memorandum, Subscription Agreement and Regulation S under the Securities Act (provided that any offer or sale of Securities Shares made in any reliance on Regulation S shall be made pursuant to an agreement with customary representations, warranties and other terms for offshore offers and sales made in reliance on Regulation S);
(iv) the Placement Agent is, and agrees that it will be at all times with respect to this Agreement, appropriately licensed in the country of its domicile, or otherwise exempt from such requirements, to the extent required by applicable law, in each jurisdiction in which the Company advises it Placement Agent will perform the duties set forth in writing that such offer would be unlawful for this Agreement;
(v) the Placement Agent will ensure that all of its associated persons involved in offering and selling the Shares have all necessary licenses and registrations to offer or sell securities.do so under applicable law;
(cj) The the Placement Agent is:
(i) a is registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered Act as a broker-dealer in each jurisdiction in which it and is required to be registered as such in order to offer and sell the Units in such jurisdiction.
a member of Financial Industry Regulatory Authority (d) “FINRA”). The Placement Agent has not and will not make an offer of Units (or maintain all licenses and registrations necessary under applicable federal and state laws, rules and regulations, including the rules and regulation of any securitiesself-regulatory organization (including FINRA) with competent jurisdiction, to provide the services required to be provided by the Placement Agent hereunder;
(k) the Placement Agent shall not distribute a Confidential Memorandum, supplement or amendment thereto or any supplemental information to any offeree solicited by the Placement Agent and investing in the Shares in reliance on Regulation D under the Securities Act with whom the Placement Agent does not have a substantive pre-existing relationship;
(l) as of the date hereof and, except as set forth on Schedule 1, the Placement Agent reasonably believes that neither the Placement Agent nor any of its Covered Persons (as defined in Exhibit A) is currently or has been subject to any of the acts enumerated in Rule 506(d)(1) of the Securities Act, that would either (i) disqualify or (ii) be required to be disclosed to investors under Rule 506(e) of the Securities Act to avoid disqualification of, the offering of which may be integrated Shares as contemplated by this Agreement, from utilizing the exemption provided under Rule 506(a) of the Securities Act (any such act, a “Disqualifying Event”). In connection with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent represents that it has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents orexercised reasonable care, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
accordance with section (e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) 506 of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as (“Rule 506”), in making a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or factual inquiry into whether any related sales materials any information relating Disqualifying Event exists with respect to the Placement Agent containing or any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.its Covered Persons;
(fm) The the Placement Agent will not transmit promptly notify the Company if it becomes aware of any Covered Person who is or becomes the subject of a Disqualifying Event. Upon becoming aware of a Disqualifying Event occurring on or after September 23, 2013, with respect to a Covered Person of the Placement Agent, the Placement Agent shall immediately (i) cease any and all payments to such Covered Person(s) relating to the offering and (ii) prevent any such Covered Person(s) from continuing to participate in the offering, unless, with respect to clauses (i) or (ii), the Company otherwise agrees, including based on applicable SEC guidance or a valid waiver applicable to such Covered Person. Upon written request from the Company, the Placement Agent shall provide written confirmation that it has taken the steps described in clauses (i) and (ii) of the preceding sentence;
(n) the Placement Agent has and maintains policies, procedures and internal controls that are reasonably designed to ensure that no Covered Person that has been subject to a Disqualifying Event is permitted to participate in any of the Company’s offerings pursuant to Rule 506;
(o) the Placement Agent shall make periodic factual inquiry as to the occurrence or existence of any Disqualifying Events with respect to itself and its Covered Persons, and shall conduct such factual inquiry with reasonable care in accordance with subsection (d)(2)(iv) of Rule 506;
(p) the Placement Agent agrees that the Company may disclose to investors and prospective investors information in Schedule 1 and any other information that Placement Agent provides to the Company any written offer from an offeree pursuant to purchase Securities unless, immediately prior thereto, it reasonably believes that:
this Agreement in connection with the Company’s compliance with section (i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11e) of Rule 506, including, without limitation, the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval identities of the Placement Agent and any of its counsel.relevant Covered Persons;
(hq) The if a Disqualifying Event occurs with respect to the Placement Agent, upon becoming aware of such fact, the Placement Agent will periodically shall promptly notify the Company of such fact and this Agreement shall be automatically terminated as of the jurisdiction in which occurrence of the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify Disqualifying Event unless the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35determines otherwise; and
(ir) The the Placement Agent has delivered or caused to be delivered (submitted, or will so deliver prior submit within the required deadline, to FINRA a copy of the applicable closing date) the Confidential Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating and any other related offering documents, including any materially amended versions thereof in the Placement to comply accordance with the representationsrequirements of FINRA Rule 5122 or Rule 5123, warrantiesas applicable, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered shall update such FINRA filing as required by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandumrules.
Appears in 1 contract
Sources: Placement Agent Agreement (Goldman Sachs Real Estate Finance Trust Inc)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents and warrants to, and covenants with, the Company that:
(a) The Placement Agent has been duly formed and is validly existing as a corporation in good standing under the laws of the state of Delaware and has full power and authority to engage in its contemplated activities.
(b) This Agreement has been duly authorized, executed and delivered by the Placement Agent and constitutes and, assuming execution hereof by the legalDistributor, will constitute a valid and binding obligation agreement of the Placement Agent, enforceable against it in accordance with its terms, except insofar as enforcement of the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.
(b) The Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with the Company to ensure that the offering and sale of the Units will comply with the requirements of the Securities Act, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice of the Company with respect to the manner in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered by the Placement Agent, and the Placement Agent will not make an offer of Securities in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
(i) a registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; has established policies and (iii) registered as a broker-dealer in each jurisdiction in which it is required procedures reasonably designed to be registered as such in order achieve compliance with laws, rules and regulations applicable to offer and sell the Units in such jurisdictionit.
(d) The Placement Agent has not and will not make an offer of Units (or of any securities, the offering of which may be integrated with the Placement) on the basis of any communications or documents relating fees paid to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as pursuant to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth this Agreement are reasonable in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements relation to the Memorandum (services it provides and reasonably similar to fees it receives for equivalent services provided to other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribeparties.
(e) The Placement Agent has all Federal and state governmental, regulatory and exchange approvals and licenses, and has effected or will timely effect all filings and registrations with Federal and state governmental agencies required to conduct its business and to act as described herein, and the performance of such obligations will not contravene or result in a breach of any provision of its certificate of incorporation, by-laws or other organizational document or any agreement, instrument, order, law or regulation binding upon it.
(f) The Placement Agent is duly registered as a broker-dealer under the Exchange Act, and is duly registered as a broker-dealer under the laws of each state and, to the extent required, the equivalent thereof in any other jurisdiction, which require such registration in connection with the services to be provided by the Placement Agent hereunder.
(g) The Placement Agent is a member in good standing of FINRA and agrees to notify the Adviser, the Distributor or the Trust should it cease to be such a member. With respect to the sale of Shares, the Placement Agent shall perform its services hereunder in compliance, in all material respects, with the Conduct Rules of FINRA and all applicable federal and state securities laws.
(h) Each individual who will engage in the activities described herein as a director, officer, employee, or agent of the Placement Agent is, and will continue to be at all times during the term of this letter agreement, (i) registered or licensed as an agent, salesman, salesperson, or sales representative in the jurisdictions from, in, or into which, such individual will be engaging in the activities described herein, and (ii) registered as a registered representative of the Placement Agent with FINRA and none of such registrations or licenses has expired or been revoked, suspended, terminated, limited, qualified, or conditioned in any respect; or, alternatively, such individual is not and will not knowingly make an offer be so required to be registered or licensed.
(i) The Placement Agent will appropriately disclose to each subscriber of Units on behalf Shares that is a Placement Agent Customer the fact that the Placement Agent receives for its services in selling Shares compensation from the Trust and the Trust’s affiliates.
(j) The Placement Agent will furnish each subscriber of Shares that is a Placement Agent Customer a copy of the Company, Prospectus prior to or at the time of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereofpurchase. The Placement Agent will provide any Placement Agent Customer who so requests with the pertinent statement of additional information.
(k) With respect to state blue sky requirements applicable to the offer and sale of Shares, the Placement Agent agrees to cooperate with the Distributor as reasonably necessary to effectuate any required or advisable filings.
(l) The Placement Agent agrees not to transact orders for Shares in jurisdictions in which Distributor has informed the Placement Agent in writing that Shares are not to be sold or in which the Placement Agent and its personnel are not authorized to sell Shares.
(m) The Placement Agent shall perform its services hereunder in compliance, in all material respects, with applicable securities laws and other applicable legal and regulatory requirements and written publicly available legal interpretations thereof of regulatory agencies or self-regulatory organizations with jurisdiction over it, and the Placement Agent has conducted its business in compliance with, and has established policies and procedures reasonably designed to achieve compliance with, the United States Foreign Corrupt Practices Act and the PATRIOT Act, and any similar statute applicable in any jurisdiction in which the Placement Agent engages in any activity, that prohibits bribery, money laundering or payments to public officials, including, without limitation, any policies of any governmental or quasi-governmental agency implementing or enforcing the foregoing.
(n) The Placement Agent has established and maintains an anti-money laundering program and/or procedures reasonably designed to achieve compliance with all applicable laws, rules and regulations of its own jurisdiction including, where applicable, the Bank Secrecy Act (as amended by the PATRIOT Act).
(o) The Placement Agent will order Shares only from the Distributor. All such purchases shall be made only to cover purchase orders already received from Placement Agent Customers.
(p) The Placement Agent will not delay in placing orders received from Placement Agent Customers so as to profit itself as a result of such delay or place any orders to purchase any Shares from the Distributor other than to cover purchase orders already received by the Placement Agent from Placement Agent Customers, and the Placement Agent will place orders for purchases (and repurchases if applicable) promptly upon receipt from Placement Agent Customers.
(q) The Placement Agent will (a) maintain all records required by law to be kept by it relating to transactions in Shares of the Trust by or on behalf of Placement Agent Customers and compensation received by the Placement Agent in respect thereto, and (b) upon reasonable request by the Distributor and/or the Trust as required in connection with a governmental, court or administrative proceeding, investigation or request, promptly make such records available to such requesting party.
(r) During the offering of the Shares, any Dealer Information provided by the Placement Agent will be complete and accurate in all material respects and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating to the Placement Agent containing contain any untrue statement of a material fact fact, or omitting omit to state any material fact required to be stated therein or necessary in order to make such informationthe statements contained therein, in light of the circumstances under which it is usedthey are made, not misleading.
(fs) The Placement Agent shall be responsible for the actions or omissions of any affiliates, employees, agents and representatives performing activities under this Agreement.
(t) The Placement Agent agrees that the Trust, the Adviser and the Distributor may disclose the terms of this Agreement, including the Placement Agent’s identity, the services rendered and the payment of compensation under this Agreement, to any third party who, in the judgment of the Trust, the Adviser and the Distributor, has a legitimate need to know, including government agencies.
(u) All material litigation and regulatory actions involving the Placement Agent and its affiliates are described in the periodic public Form 10-K and 10-Q filings made by the Placement Agent or its affiliates with the Commission and the publicly filed Forms ADV and Forms BD of the Placement Agent and/or its affiliates.
(v) The Placement Agent will not transmit promptly notify Distributor and the Adviser of any non-confidential claim, complaint, lawsuit or proceeding and any communication, examination, enforcement action or other proceeding by any regulatory agency, self-regulatory organization or other regulatory authority with respect to the Company any written Trust or the offer from an offeree or sale of the Shares against or directed at or to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" or its principals, affiliates, officers, directors, employees or agents, or any person who controls the Placement Agent, within the meaning of Section 2(11) 15 of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel.
(h) The Placement Agent will periodically notify the Company of the jurisdiction in which the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandum.
Appears in 1 contract
Sources: Placement Agent Agreement (BlackRock Multi-Sector Opportunities Trust II)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents and represents, warrants to, and covenants with, the Company thatas follows:
(ai) The Placement Agent has the necessary corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
(ii) The Placement Agent is a limited liability company duly organized and validly existing under the laws of the State of New York; the execution and delivery by the Placement Agent of this Agreement and the consummation of the transactions herein contemplated will not result in any violation of, or be in conflict with, or constitute a default under, any agreement or instrument to which the Placement Agent is a party or by which the Placement Agent or its properties are bound, or any judgment, decree, order or, to the Placement Agent's knowledge, any statute, rule or regulation applicable to the Placement Agent. This Agreement has been duly authorizedAgreement, when executed and delivered by the Placement Agent and constitutes Agent, will constitute the legal, valid and binding obligation of the Placement Agent, enforceable against it in accordance with its terms, except insofar as enforcement of to the indemnification or contribution provisions extent that (a) the enforceability hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other reorganization, moratorium or similar laws from time to time in effect and related court decisions relating affecting the rights of creditors generally, (b) the enforceability hereof is subject to general principles of equity, or affecting creditors' rights generally(c) the indemnification provisions hereof may be held to be violative of public policy.
(biii) The Placement Agent will deliver to each purchaser, prior to any submission by such person of a written offer to purchase any Notes, a copy of the Offering Materials, as it may have been most recently amended or supplemented by the Company.
(iv) Upon receipt of an executed Subscription Agreement and the payments representing subscriptions for such Notes, the Placement Agent will promptly forward copies of the subscription documents to the Company and shall forward all consideration received for such Notes to the Escrow Agent to be held in escrow.
(v) The Placement Agent will not conduct deliver the Offering Materials to any person it does not reasonably believe to be an Accredited Investor.
(vi) The Placement Agent will not intentionally take any action which it reasonably believes would cause the Placement to violate the provisions of the Securities Act or the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
(vii) The Placement Agent shall use all reasonable efforts to determine (a) whether any prospective purchaser is an Accredited Investor and (b) that any information furnished by a prospective investor is true and accurate. The Placement Agent shall have no obligation to insure that (1) any check, note, draft or other means of payment for the Notes will be honored, paid or enforceable against the subscriber in violation accordance with its terms, or (2) subject to the performance of applicable federal the Placement Agent's obligations and state securities laws the accuracy of the Placement Agent's representations and will cooperate with the Company to ensure warranties hereunder, (A) that the offering and sale of Placement is exempt from the Units will comply with the registration requirements of the Securities Act, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice Act or any applicable state "Blue Sky" law or (B) any prospective purchaser is an Accredited Investor.
(viii) The Placement Agent is a member of the Company with respect to National Association of Securities Dealers, Inc. and is a broker-dealer registered as such under the manner in which to offer Exchange Act and sell the Units so as to ensure that the offering and sale thereof will comply with under the securities laws of any jurisdiction the States in which Securities are the securities will be offered by the Placement Agent, and the Placement Agent will not make unless an offer of Securities in any jurisdiction in which the Company advises it in writing that exemption for such offer would be unlawful for the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
(i) a registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered as a broker-dealer in each jurisdiction in which it state registration is required to be registered as such in order to offer and sell the Units in such jurisdiction.
(d) The Placement Agent has not and will not make an offer of Units (or of any securities, the offering of which may be integrated with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
(e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating available to the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleadingAgent.
(f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11) of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel.
(h) The Placement Agent will periodically notify the Company of the jurisdiction in which the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandum.
Appears in 1 contract
Sources: Placement Agent Agreement (Fortune Natural Resources Corp)
Representations, Warranties and Covenants of the Placement Agent. A. The Placement Agent hereby represents and represents, warrants to, and covenants with, the Company thatas follows:
(a) This Agreement has been duly authorized, executed and delivered by the Placement Agent and constitutes the legal, valid and binding obligation of the Placement Agent, enforceable against it in accordance with its terms, except insofar as enforcement of the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.
(b) The Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with the Company to ensure that the offering and sale of the Units will comply with the requirements of the Securities Act, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice of the Company with respect to the manner in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered by the Placement Agent, and the Placement Agent will not make an offer of Securities in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
(i) a registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered as a broker-dealer in each jurisdiction in which it is required to be registered as such in order to offer and sell the Units in such jurisdiction.
(d) The Placement Agent has not and will not make an offer of Units (or of any securities, the offering of which may be integrated with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
(e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating to the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.
(f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11) of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel.
(h) The Placement Agent will periodically notify the Company of the jurisdiction in which the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused the necessary power to be delivered (or will so deliver prior enter into this Agreement and to consummate the applicable closing date) the Memorandum to each prospective Investortransactions contemplated hereby.
(jii) The execution and delivery by the Placement Agent of this Agreement and the consummation of the transactions contemplated herein will not result in any violation of, or be in conflict with, or constitute a default under, any agreement or instrument to which the Placement Agent is a party or by which the Placement Agent or its properties are bound, or any judgment, decree, order or, to the Placement Agent's knowledge, any statute, rule or regulation applicable to the Placement Agent. This Agreement when executed and REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLACEMENT AGENT - continued delivered by the Placement Agent, will constitute the legal, valid and binding obligations of the Placement Agent, enforceable in accordance with their respective terms, except to the extent that (a) the enforceability hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect and affecting the rights of creditors generally, (b) the enforceability hereof or thereof is subject to general principles of equity, or (c) the indemnification provisions hereof or thereof may be held to be in violation of public policy.
(iii) Upon receipt and execution of this Agreement the Placement Agent will promptly forward copies of this Agreement to the Company or its counsel and the Investor or its counsel.
(iv) The Placement Agent will not take any action that it reasonably believes would cause the Offering to violate the provisions of the Securities Act of 1933, as amended (the "1933 ACT"), the Securities Exchange Act of 1934 (the "1934 ACT"), the respective rules and regulations promulgated there under (the "RULES AND REGULATIONS") or applicable "Blue Sky" laws of any state or jurisdiction.
(v) The Placement Agent will use all NASD member firms participating reasonable efforts to determine (a) whether the Investor is an Accredited Investor and (b) that any information furnished by the Investor is true and accurate. The Placement Agent shall have no obligation to insure that (x) any check, note, draft or other means of payment for the Common Stock will be honored, paid or enforceable against the Investor in accordance with its terms, or (y) subject to the Placement to comply with the representations, warranties, covenants and undertakings performance of the Placement Agent in this Agreement Agent's obligations and the accuracy of the Placement Agent's representations and warranties hereunder, (1) the Offering is exempt from the registration requirements of the 1933 Act or any applicable state "Blue Sky" law or (2) the Investor is an Accredited Investor.
(vi) The Placement Agent will be responsible therefor is a member of the National Association of Securities Dealers, Inc., and no compensation or other inducement is a broker-dealer registered as such under the 1934 Act and under the securities laws of the states in which the Securities will be offered or sold by the Placement Agent to any unless an exemption for such firm or to any Investor with respect state registration is available to the Placement, other than as provided Placement Agent. The Placement Agent is in this Agreement or as disclosed compliance with all material rules and regulations applicable to the Placement Agent generally and applicable to the Placement Agent's participation in the MemorandumOffering.
Appears in 1 contract
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents represents, warrants and warrants toagrees with the Company, and covenants with, the Company for its benefit that:
(a) This the Placement Agent is a duly formed and validly existing limited liability company under the laws of the State of New York and has the requisite power and authority to conduct its business as contemplated by its organizational documents;
(b) the execution, delivery and performance of this Agreement has been duly authorized, executed and delivered by the Placement Agent has been duly authorized by all necessary action, and constitutes the legalupon execution and delivery hereof, valid this Agreement will be a valid, binding and binding enforceable obligation of the Placement Agent, enforceable against it ;
(c) the Placement Agent will offer the Shares for sale and will solicit offers to buy the Shares only in compliance with the procedures described in the Confidential Memorandum and this Agreement and in accordance with applicable law;
(d) as of the date hereof, no permit, consent, approval or authorization of, or declaration to, or filing with, any governmental or regulatory authority is required in connection with the (i) execution, delivery and performance of this Agreement and (ii) consummation of any of the transactions contemplated herein and in the Confidential Memorandum;
(e) neither the Placement Agent, nor any affiliate of the Placement Agent, nor any person acting on behalf of the Placement Agent or its termsaffiliates, shall offer the Shares in any jurisdiction, except insofar as enforcement of in compliance with the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.law in any such jurisdiction in which such offering is made;
(bf) The the Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with notify the Company to ensure that promptly of any occurrence of which it becomes aware which is material in the context of the offering and sale of the Units Shares, including any event which shall lead the Placement Agent to reasonably believe that the Confidential Memorandum is or will be misleading in any material respect, or which affects any of the representations, warranties, agreements and indemnities by the Placement Agent contained in this Agreement (or which would have affected any of the same if this Agreement had been entered into immediately thereafter), and will take such steps as may be reasonably requested by the Company to remedy and/or publicize the same;
(g) in offering Shares, the Placement Agent, in its agreements with the Sub-Placement Agents, will require that the applicable Sub-Placement Agents comply with the requirements provisions of the Securities Actall applicable rules and regulations relating to suitability of investors, including, without limitation, the general conditions contained provisions of Exchange Act Rule 15l-1 (“Regulation Best Interest”) (when and as applicable) and applicable laws of the jurisdiction of which such investor is a resident. The Placement Agent, in Regulation D its agreements with the Sub-Placement Agents, will require that the Sub-Placement Agents shall sell Shares only to those persons who are eligible to purchase such Shares as described in the Confidential Memorandum and only through those Sub-Placement Agents who are authorized to sell such Shares. The Placement Agent, in its agreements with the Sub-Placement Agents, shall require the applicable Sub-Placement Agents to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares;
(h) the Placement Agent shall maintain records reflecting the identity of all persons to which it offered and sold Shares as well information regarding the suitability of such Shares for such offerees and investors and the federal securities lawseligibility of such persons to invest in the Company consistent with the Confidential Memorandum. The Placement Agent shall retain such records for at least six years in accordance with applicable law and provide copies to the Company upon request;
(i) (i) the Placement Agent, in connection with each sale of Shares made by or through it, has complied, and will follow comply, with all applicable anti-money laundering laws and regulations, including without limitation the reasonable advice USA Patriot Act of 2001, as amended (collectively, the Company “Anti-Money Laundering Laws”); the Placement Agent has established and will maintain an anti-money laundering compliance program as required by the Anti-Money Laundering Laws, will conduct in relation to each Person who purchases Shares from or through it such due diligence investigations as may be required by the Anti-Money Laundering Laws, including investigations with respect to the manner in which legitimacy of the applicable purchaser (together with any beneficial owner represented by such purchaser) and the origin of the funds used by such purchaser (or beneficial owner) to offer purchase its Shares, and sell maintains, and will maintain, sufficient information to identify the Units so as to ensure that applicable purchaser (and any related beneficial owner) for purposes of the offering Anti-Money Laundering Laws; the Placement Agent will promptly provide the Company with such information (including copies of written investor representations and sale thereof will comply with the securities laws of any jurisdiction in which Securities are offered internal due diligence or investigatory reports prepared by the Placement Agent) as the Company may from time to time reasonably request to establish, or to demonstrate, compliance by the Company with any Anti-Money Laundering Laws that are now, or hereafter become, applicable to it in connection with the offering of the Shares (“Applicable AML Laws”); and the Placement Agent will cooperate in good faith with the Company to amend the offering procedures set forth herein and the Placement Agent’s duties hereunder in such manner as may from time to time be required for the Company to establish compliance with Applicable AML Laws;
(ii) the Placement Agent has used and will use commercially reasonable due diligence with respect to accepting as clients any investors of the Company who have purchased or will purchase through the Placement Agent and with respect to introducing investors to the Company, and to the best of the Placement Agent’s knowledge, such clients are of good business reputation and such clients’ funds used to purchase Shares were not make and will not be derived from, nor the product of, any criminal activity;
(iii) the Placement Agent will reasonably believe immediately prior to making any offer or sale of Shares that (A) any prospective investor (U.S. Person or non-U.S. Person, as defined in Regulation S under the Securities Act) solicited by the Placement Agent and investing in the Shares in reliance on Regulation D under the Securities Act is an “accredited investor” (as such term is defined in Rule 501(a) of Regulation D under the Securities Act), with whom the Placement Agent or any person acting on its behalf, including any affiliate or designee, has a “substantive pre-existing relationship” (as such term is used in the regulatory regime relating to Regulation D under the Securities Act) and meets such other eligibility criteria as are set forth in the Confidential Memorandum and Subscription Agreement, and (B) any prospective investor who is not a U.S. Person (as such term is defined in Regulation S under the Securities Act) that is solicited by the Placement Agent and investing in the Shares in reliance on Regulation S under the Securities Act meets the eligibility criteria set forth in the Confidential Memorandum, Subscription Agreement and Regulation S under the Securities Act (provided that any offer or sale of Securities Shares made in any reliance on Regulation S shall be made pursuant to an agreement with customary representations, warranties and other terms for offshore offers and sales made in reliance on Regulation S);
(iv) the Placement Agent is, and agrees that it will be at all times with respect to this Agreement, appropriately licensed in the country of its domicile, or otherwise exempt from such requirements, to the extent required by applicable law, in each jurisdiction in which the Company advises it Placement Agent will perform the duties set forth in writing that such offer would be unlawful for this Agreement;
(v) the Placement Agent will ensure that all of its associated persons involved in offering and selling the Shares have all necessary licenses and registrations to offer or sell securities.do so under applicable law;
(cj) The the Placement Agent is:
(i) a is registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered Act as a broker-dealer in each jurisdiction in which it and is required to be registered as such in order to offer and sell the Units in such jurisdiction.
a member of Financial Industry Regulatory Authority (d) “FINRA”). The Placement Agent has not and will not make an offer of Units (or maintain all licenses and registrations necessary under applicable federal and state laws, rules and regulations, including the rules and regulation of any securitiesself-regulatory organization (including FINRA) with competent jurisdiction, to provide the services required to be provided by the Placement Agent hereunder;
(k) the Placement Agent shall not distribute a Confidential Memorandum, supplement or amendment thereto or any supplemental information to any offeree solicited by the Placement Agent and investing in the Shares in reliance on Regulation D under the Securities Act with whom the Placement Agent does not have a substantive pre-existing relationship;
(l) as of the date hereof and, except as set forth on Schedule 1, the Placement Agent reasonably believes that neither the Placement Agent nor any of its Covered Persons (as defined in Exhibit A) is currently or has been subject to any of the acts enumerated in Rule 506(d)(1) of the Securities Act, that would either (i) disqualify or (ii) be required to be disclosed to investors under Rule 506(e) of the Securities Act to avoid disqualification of, the offering of which may be integrated Shares as contemplated by this Agreement, from utilizing the exemption provided under Rule 506(a) of the Securities Act (any such act, a “Disqualifying Event”). In connection with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent represents that it has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents orexercised reasonable care, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
accordance with section (e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) 506 of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as (“Rule 506”), in making a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or factual inquiry into whether any related sales materials any information relating Disqualifying Event exists with respect to the Placement Agent containing or any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.its Covered Persons;
(fm) The the Placement Agent will not transmit promptly notify the Company if it becomes aware of any Covered Person who is or becomes the subject of a Disqualifying Event. Upon becoming aware of a Disqualifying Event occurring on or after September 23, 2013, with respect to a Covered Person of the Placement Agent, the Placement Agent shall immediately (i) cease any and all payments to such Covered Person(s) relating to the offering and (ii) prevent any such Covered Person(s) from continuing to participate in the offering, unless, with respect to clauses (i) or (ii), the Company otherwise agrees, including based on applicable SEC guidance or a valid waiver applicable to such Covered Person. Upon written request from the Company, the Placement Agent shall provide written confirmation that it has taken the steps described in clauses (i) and (ii) of the preceding sentence;
(n) the Placement Agent has and maintains policies, procedures and internal controls that are reasonably designed to ensure that no Covered Person that has been subject to a Disqualifying Event is permitted to participate in any of the Company’s offerings pursuant to Rule 506;
(o) the Placement Agent shall make periodic factual inquiry as to the occurrence or existence of any Disqualifying Events with respect to itself and its Covered Persons, and shall conduct such factual inquiry with reasonable care in accordance with subsection (d)(2)(iv) of Rule 506;
(p) the Placement Agent agrees that the Company may disclose to investors and prospective investors information in Schedule 1 and any other information that Placement Agent provides to the Company any written offer from an offeree pursuant to purchase Securities unless, immediately prior thereto, it reasonably believes that:
this Agreement in connection with the Company’s compliance with section (i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11e) of Rule 506, including, without limitation, the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval identities of the Placement Agent and any of its counsel.relevant Covered Persons;
(hq) The if a Disqualifying Event occurs with respect to the Placement Agent, upon becoming aware of such fact, the Placement Agent will periodically shall promptly notify the Company of such fact and this Agreement shall be automatically terminated as of the jurisdiction in which occurrence of the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify Disqualifying Event unless the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35determines otherwise; and
(ir) The the Placement Agent has delivered or caused to be delivered (submitted, or will so deliver prior submit within the required deadline, to FINRA a copy of the applicable closing date) the Confidential Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating and any other related offering documents, including any materially amended versions thereof in the Placement to comply accordance with the representationsrequirements of FINRA Rule 5122 or Rule 5123, warrantiesas applicable, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered shall update such FINRA filing as required by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandumrules.
Appears in 1 contract
Sources: Placement Agent Agreement (Goldman Sachs Real Estate Finance Trust Inc)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents, warrants and covenants to the Fund as follows:
a. The Placement Agent is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to do business in each jurisdiction in which the nature or conduct of its business requires such qualification and in which the failure to be so qualified would materially adversely affect the Placement Agent’s ability to perform its obligations under this Agreement.
b. The Placement Agent is registered as a broker-dealer with the SEC and is a member in good standing with FINRA, and shall operate only through its duly licensed Registered Representatives. The Placement Agent further represents and warrants tothat it (and where applicable, its Registered Representatives)
i. is registered or qualified in all capacities and jurisdictions required by reason of any offers or sales made pursuant to this Agreement,
ii. is registered and in good standing under the rules and regulations of the applicable state and/or federal agencies, self-regulatory, regulatory or governing bodies in which the nature or conduct of its business requires such registration and in which the failure to so register, and/or remain in good standing, would materially adversely affect its ability to perform its obligations under this Agreement, and
iii. shall comply, in all material respects, with all applicable laws and regulations in connection with the performance of its obligations hereunder.
c. The Placement Agent has full power and authority to approve, execute, deliver and perform its obligations under this Agreement, and covenants with, the Company that:
(a) This Agreement has been duly authorizedwhen so approved, executed and delivered by the Placement Agent and constitutes the delivered, this Agreement will constitute its legal, valid and binding obligation of the Placement Agentobligation, enforceable against it in accordance with its termsterms except, except insofar in each case, as enforcement of the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other or similar laws and related court decisions relating to or Applicable Law affecting creditors' ’ rights generallygenerally and by general principles of equity.
d. Each of (bi) The the Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with the Company to ensure that the offering and sale of the Units will comply with the requirements of the Securities Act, including, without limitation, the general conditions contained in Regulation D and the federal securities laws, and will follow the reasonable advice of the Company with respect to the manner in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of or any jurisdiction in which Securities are offered other entity used or engaged directly or indirectly by the Placement Agent, and which other entity has been or will be paid (directly or indirectly) remuneration for the services rendered in connection with this Agreement (each a “Placement Agent will not make an offer of Securities in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
(i) a registered broker-dealer under the Exchange ActEntity”); (ii) any general partner, managing member or equivalent of a member in good standing of the NASDPlacement Agent Entity; and or (iii) registered as a broker-dealer in each jurisdiction in which it is required to be registered as such in order to offer and sell the Units in such jurisdiction.
(d) The Placement Agent has not and will not make an offer of Units (any director, executive officer, or other officer rendering services hereunder, of any securities, the offering of which may be integrated with the Placemententity specified in clause (i) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum ii) or any other representation regarding person receiving remuneration (directly or indirectly) for the Company or the Placement that is rendering of services hereunder has not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not been subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
(e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising event specified in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2506(d)(1) of the Securities Act as a transaction exempt or any proceeding or event that could result in any such event (“Disqualifying Event”) that would either require disclosure under the provisions of Rule 506(e) of the Securities Act or result in disqualification under Rule 506(d)(1) of the Securities Act of such Fund’s use of the Rule 506 exemption from Section 5 thereofregistration under the Securities Act. The Placement Agent’s representations, warranties and covenants shall continue to be true, correct and in effect during the term of this Agreement or, if later, through the date all amounts payable hereunder have been paid. The Placement Agent has not and will not supply in writing for inclusion in the Memorandum or any related sales materials any information relating to the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.
(f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11) of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel.
(h) The Placement Agent will periodically shall promptly notify the Company of the jurisdiction in which the Securities are being offered by it Fund if any change occurs that would make any representation, warranty or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings covenant made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and Section 4 inaccurate or incomplete in any material respect or if any proceeding or investigation is pending or threatened that, if adversely determined, would adversely impact the Placement Agent will be responsible therefor and no compensation or other inducement will be offered offering of Fund Interests as contemplated by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the MemorandumAgreement.
Appears in 1 contract
Sources: Placement Agent Agreement (Comvest Credit Partners BDC Fund, L.P.)
Representations, Warranties and Covenants of the Placement Agent. The Placement Agent hereby represents represents, warrants and warrants toagrees with the Company, and covenants with, the Company for its benefit that:
(a) This the Placement Agent is a duly formed and validly existing limited liability company under the laws of Delaware and has the requisite power and authority to conduct its business as contemplated by its organizational documents;
(b) the execution, delivery and performance of this Agreement has been duly authorized, executed and delivered by the Placement Agent has been duly authorized by all necessary action, and constitutes the legalupon execution and delivery hereof, valid this Agreement will be a valid, binding and binding enforceable obligation of the Placement Agent, enforceable against it ;
(c) the Placement Agent will offer the Shares for sale and will solicit offers to buy the Shares only in compliance with the procedures described in the Confidential Memorandum and this Agreement and in accordance with applicable law;
(d) as of the date hereof, no permit, consent, approval or authorization of, or declaration to, or filing with, any governmental or regulatory authority is required in connection with the (i) execution, delivery and performance of this Agreement and (ii) consummation of any of the transactions contemplated herein and in the Confidential Memorandum;
(e) without the prior consent of the Company, no steps will be taken to qualify the Shares for sale in any jurisdiction;
(f) neither the Placement Agent, nor any affiliate of the Placement Agent, nor any person acting on behalf of the Placement Agent or its termsaffiliates, shall offer the Shares in any jurisdiction, except insofar as enforcement of in compliance with the indemnification or contribution provisions hereof may be limited by applicable laws or principles of public policy and subject, as to enforcement, to the availability of equitable remedies and limitations imposed by bankruptcy, insolvency, reorganization and other similar laws and related court decisions relating to or affecting creditors' rights generally.law in any such jurisdiction in which such offering is made;
(bg) The the Placement Agent will not conduct the Placement in violation of applicable federal and state securities laws and will cooperate with notify the Company to ensure that promptly of any occurrence of which it becomes aware which is material in the context of the offering and sale of the Units Shares, including any event which shall lead the Placement Agent to reasonably believe that the Confidential Memorandum is or will comply be misleading in any material respect, or which affects any of the representations, warranties, agreements and indemnities by the Placement Agent contained in this Agreement (or which would have affected any of the same if this Agreement had been entered into immediately thereafter), and will take such steps as may be reasonably requested by the Company to remedy;
(h) (i) the Placement Agent acknowledges that it has been informed by the Company that the Company has or shall, on or about the date hereof, engaged US Bancorp Fund Services, LLC (the “Transfer Agent”) to provide services, with respect to the requirements Company’s compliance with all applicable anti-money laundering laws and regulations (collectively, the “Anti-Money Laundering Laws”), including without limitation the USA Patriot Act of 2001 and the U.S. Bank Secrecy Act pursuant to an anti-money laundering compliance program established and maintained by the Transfer Agent, in, relation to each Person who purchases Shares in the Company, as required by the Anti-Money Laundering Laws;
(ii) the Placement Agent will reasonably believe immediately prior to making any offer or sale of Shares that (A) any prospective U.S. investor solicited by the Placement Agent is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D under the Securities Act, including, without limitation, and meets such other eligibility criteria as are set forth in the general conditions contained in Regulation D Confidential Memorandum and the federal securities lawsSubscription Agreement, and (B) any prospective investor who is not a U.S. investor that is solicited by the Placement Agent meets the eligibility criteria set forth in the Confidential Memorandum and Subscription Agreement and Regulation S under the Securities Act;
(iii) the Placement Agent is, and agrees that it will follow the reasonable advice of the Company be at all times with respect to this Agreement, appropriately licensed in the manner country of its domicile, or otherwise exempt from such requirements, to the extent required by applicable law, in which to offer and sell the Units so as to ensure that the offering and sale thereof will comply with the securities laws of any each jurisdiction in which Securities are offered by the Placement Agent, and the Placement Agent will not make an offer of Securities perform the duties set forth in any jurisdiction in which the Company advises it in writing that such offer would be unlawful for this Agreement; and
(iv) the Placement Agent to offer or sell securities.
(c) The Placement Agent is:
(i) a is registered broker-dealer under the Exchange Act; (ii) a member in good standing of the NASD; and (iii) registered Act as a broker-dealer in each jurisdiction in which it and is required to be registered as such in order to offer and sell the Units in such jurisdiction.
a member of Financial Industry Regulatory Authority (d) The Placement Agent has not and will not make an offer of Units (or of any securities, the offering of which may be integrated with the Placement) on the basis of any communications or documents relating to the Company or the Units except the Memorandum and the exhibits thereto and documents described or referred to therein (including the Subscription Documents“FINRA”), and the cover letters referred to in Section 2 hereof. Without limiting the generality of the foregoing, the Placement Agent has not and will The Sagemark Companies, Ltd. October 14, 2004 Page 20 of 35 not make any representation as to any rate of return on investment that an offeree may obtain from the ownership of the Securities other than as set forth in the Memorandum or any other representation regarding the Company or the Placement that is not contained in the Memorandum. The Placement Agent will deliver a copy of the Memorandum to each prospective Investor solicited by it prior to such offeree's execution of the Subscription Documents or, in the case of amendments or supplements to the Memorandum (other than those amendments and supplements approved in writing by the Company but designated in writing as not subject to this requirement), prior to such offeree's execution of an acknowledgment of receipt of such amendment or supplement and reconfirmation of intent to subscribe.
(e) The Placement Agent has not and will not knowingly make an offer of Units on behalf of the Company, or of any securities, the offering of which may be integrated with the Placement, by any form of general solicitation or general advertising in violation of Rule 502(c) of Regulation D such as would cause the offering of Units not to qualify under Section 4(2) of the Securities Act as a transaction exempt from Section 5 thereof. The Placement Agent has not and will not supply in writing for inclusion in maintain all licenses and registrations necessary under applicable federal and state laws, rules and regulations, including the Memorandum or rules and regulation of any related sales materials any information relating self-regulatory organization (including FINRA) with competent jurisdiction, to provide the Placement Agent containing any untrue statement of a material fact or omitting to state any material fact services required to be stated therein or necessary to make such information, in light of the circumstances under which it is used, not misleading.
(f) The Placement Agent will not transmit to the Company any written offer from an offeree to purchase Securities unless, immediately prior thereto, it reasonably believes that:
(i) the offeree is an Accredited Investor; and
(ii) the offeree meets all other offeree and/or purchaser suitability standards, if any, required under applicable securities laws and regulations.
(g) The Placement Agent will exercise reasonable care to determine that prospective Investors are not "underwriters" within the meaning of Section 2(11) of the Securities Act, and in that connection will obtain from each investor purchasing Securities in the Placement duly executed Subscription Documents, in the forms attached to the Memorandum or otherwise provided to the Placement Agent by the Company with the approval of the Placement Agent and its counsel.
(h) The Placement Agent will periodically notify the Company of the jurisdiction in which the Securities are being offered by it or will be offered by it pursuant to this Agreement, and will periodically notify the Company of the status of the offering conducted pursuant to this Agreement. Such notices will be accompanied by copies of all filings made by the Placement Agent's counsel in each such jurisdiction so as to enable the Company to timely comply with its filing obligations under applicable state laws (the Company will be responsible for all filings under applicable federal securities laws). The Sagemark Companies, Ltd. October 14, 2004 Page 21 of 35
(i) The Placement Agent has delivered or caused to be delivered (or will so deliver prior to the applicable closing date) the Memorandum to each prospective Investor.
(j) The Placement Agent will cause all NASD member firms participating in the Placement to comply with the representations, warranties, covenants and undertakings of the Placement Agent in this Agreement and the Placement Agent will be responsible therefor and no compensation or other inducement will be offered by the Placement Agent to any such firm or to any Investor with respect to the Placement, other than as provided in this Agreement or as disclosed in the Memorandumhereunder.
Appears in 1 contract
Sources: Placement Agent Agreement (Muzinich Corporate Lending Income Fund, Inc.)