Updated as of January 20, 2021
All information, content, tools, features, diligence materials, investment opportunities and functionality located on or accessible through the Platform are referred to as the“Services”. When you use the Platform, you agree to comply with the terms of thisAgreement on behalf of yourself and, in the case of any institutional investor, sponsored account or other entity, your employees, agents, consultants and others who may use the Services on your behalf.
You acknowledge your understanding that this Agreement constitutes a binding agreement between you and Templum Markets that governs your access and use of the Platform, which includes any images, text, illustrations, designs, icons, photographs, programs, downloads, systems and methods of trading, user interfaces, visual interfaces, information, data, tools, products, written materials, services and other content (together,"Content"), including but not limited to the design, structure, selection, coordination, expression and arrangement of the Content available on or through the Platform.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, SO PLEASE READ CAREFULLY BEFORE ACCEPTING THE TERMS OF THE AGREEMENT.
Subject to certain exceptions, the Platform and the securities therein are intended for unaccredited, accredited and institutional investors(for persons residing in the U.S.), and for persons residing abroad in jurisdictions where securities registration exemptions apply. Securities made available to trade on the Platform are executed by and through Templum Markets, a registered broker-dealer that is approved to operate an alternative trading system and member FINRA and SIPC. Information on all FINRA-registered broker-dealers can be found on FINRA's BrokerCheck.
EACH TIME YOU USE THE PLATFORM, YOUR USE INDICATES YOUR FULL ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THE TERMS AND CONDITIONS OF THE AGREEMENT IN CURRENT FORM. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT STATED HEREIN, DO NOT USE THE PLATFORM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PLATFORM. YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT IS A CONDITION TO YOUR RIGHT TO ACCESS THE PLATFORM. YOUR BREACH OF ANY PROVISION OF THESE TERMS AND CONDITIONS OF THIS AGREEMENT WILL AUTOMATICALLY, WITHOUT THE REQUIREMENT OF NOTICE OR OTHER ACTION, REVOKE AND TERMINATE YOUR RIGHT TO ACCESS THE PLATFORM AND YOU WILL BE FULLY LIABLE FOR CONVERSION, MISAPPROPRIATION, TRESPASS TO CHATTELS AND ALL OTHER CLAIMS AND CAUSES, REGARDLESS OF THE IDENTITY OF CLAIMANT OR INJURED PARTY, ARISING FROM OR RELATING TO YOUR CONTINUED USE OF THE PLATFORM AFTER SUCH BREACH.
Use of the Platform and/or the Services constitutes your agreement to be bound by the terms and conditions contained in this Agreement.
You represent and warrant that you are of legal age to use the Services. You may not accept thisAgreement if you are not of a legal age to form a binding contract with Templum Markets. By accepting this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity. You may print or save a copy of this Agreement for your records.
Templum Markets works with third-party providers of information in connection with the Services.Templum Markets does not endorse or guarantee any such third-party information for any purpose, including but not limited to accuracy, legality, non-infringement or fitness for any particular purpose. Templum Markets is not responsible for any third-party products and services or third-party websites accessed through the Services.
Any information provided to or data generated by your activities on the Platform will be available to Templum Markets in order to assist you with the Services provided by Templum Markets. You agree and understand that you are responsible for maintaining the confidentiality of your password, which, together with your Login ID e-mail address, allows you to access the Platform.
Your Login ID and password, together with any mobile number or other contact information you provide, form your 'Registration Information.'
By providing Templum Markets with your e-mail address, you agree to receive all required notices from Templum Markets electronically, to the e-mail address provided. It is your responsibility to update or change that address. Notices will be provided in HTML (or, if your system does not support HTML, in plain text) in the text of the e-mail or through a link to the appropriate page on its site, accessible through most standard, commercially available Internet browsers. If you become aware of any unauthorized use of your Registration Information, you agree to notify Templum Markets immediately.
Your right to access and use the Platform is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Platform for lawful purposes.
In order for the Platform to function effectively, you must also keep your Registration Information up to date and accurate. If you do not do this, the accuracy and effectiveness of theServices to you may be affected.
Your access and use of the Platform and the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, repair or other actions that Templum Markets, in its sole discretion, may elect to take. You acknowledge that Templum Markets cannot always foresee or anticipate technical or other difficulties that may result in failure to obtain data or loss of data, personalization settings, or other service interruptions. You understand that Templum Markets cannot and does not assume responsibility for the timeliness, accuracy, deletion, non-delivery, or failure to store any user data, communications, or personalization settings, or for any limitations, downtime or unavailability of the Platform as a result of any third-party provider, technology company, hosting service or licensor who provides services or technology to Templum Markets for the enablement of the Platform.
Templum Markets may from time to time provide automatic alerts and voluntary account-related alerts. Automatic alerts may be sent to you following certain changes made online to your account, such as a change in your Registration Information. You do not need to activate these alerts. Although you may have the option to turnoff some of these automatic alerts, Templum Markets recommends that you leave them on, since they may be security related.
Voluntary account alerts may be turned on by default as part of the Services. Templum Markets may add new alerts from time to time or cease to provide certain alerts at any time in its sole discretion. Each alert may have different options available, and you may be asked to select from among these options upon activation of your alerts service.
If your e-mail address changes, you are responsible for informing Templum Markets of that change.Alerts may include your Login ID and some information about your account.Anyone with access to your e-mail will be able to view the content of these alerts.
You understand and agree that any alerts provided to you through the Service may be delayed or prevented by a variety of factors. Templum Markets does its best to provide alerts in a timely manner with accurate information. Templum Markets does not guarantee the delivery or the accuracy of the content of any alert. You explicitly agree that Templum Markets shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert, for any errors in the content of an alert, or for any actions taken or not taken by you or any third party in reliance on an alert.
Any information, data, passwords, usernames, PINs, other log-in information, materials or other content (collectively, “Accounts Content”) you provide in connection with theServices, you are licensing, free of any charge, to Templum Markets solely for the purpose of providing the Services. Templum Markets may use such AccountsContent, but only to provide the Services to you. By submitting AccountsContent, you represent that you are entitled to submit it in connection with the Services for use for this purpose, without any obligation by Templum Markets to pay any fees or other limitations.
The Platform’s “look and feel” (for example, the text, graphics, images, logos and button icons appearing on the website), photographs, editorial content, notices, software(including HTML-based computer programs) and other materials are protected under United States and other applicable copyright, trademark and other laws.The contents of the Platform belong or are licensed to Templum Markets or its software or content suppliers. Templum Markets grants you the right to view and use the Platform subject to these terms. You may download or print a copy of information provided on the Platform for your personal, internal and non-commercial use only. Any distribution, reprint or electronic reproduction of any content from the Platform, in whole or in part, for any other purpose is expressly prohibited without Templum Market’s prior written consent.
You agree that you will not:
Templum Markets shall not be liable for any harm caused by the transmission through access or use of the Platform of a computer virus or other electronically transmitted code or programming device that might be used to access, damage, modify, delete, corrupt, disable, disrupt or otherwise impede in any manner the operation of the Platform or the information contained herein, or any ofSubscriber’s hardware, software, data or property. Further, Subscriber will not introduce into the Platform any code, malicious or hidden procedures, routines or mechanisms that would permit other individuals access to the Platform or to enable or impair its operation (sometimes referred to as “viruses”, “traps”, “access codes” or “trap door devices”), nor will Subscriber access the Platform to gain any unauthorized access to any computer system operated by Templum Markets or any of its affiliates.
ThePlatform may contain links to certain Internet platforms or websites sponsored and maintained by third parties. These Internet platforms or websites are not under the control of Templum Markets. In addition, such third-party platforms or websites may contain links to the Platform. Templum Markets is not responsible or liable for, and makes no representations or warranties, concerning the content of any such third-party platforms or websites. The fact that Templum Markets has provided a link to a third-party platform or website, or that a third-party platform or website has provided a link to the Platform, does not constitute an endorsement, authorization, sponsorship, or affiliation by Templum Markets with respect to that platform or website, its owners, or its providers and Subscriber accesses that platform or website and any services or information provided therein are at Subscriber’s own risk. Templum Markets is not responsible or liable for, and makes no representations or warranties with respect to, any particular information, software, products, services or content found on any of the linked platforms or websites, including appropriateness of any products, services or transactions described therein.
Templum Markets may suspend, restrict, deactivate or otherwise cancel your account or access to thePlatform as needed by Templum Markets to comply with all applicable laws or regulations, or upon reasonable belief that you may have violated thisAgreement.
Templum Markets may modify this Agreement from time to time in its sole discretion. The Agreement will indicate the date it was last revised. You are deemed to accept and agree to be bound by any changes to the Agreement when you visit the Platform or use the Service after such changes are made.
Templum Markets shall not be liable for delays, failure in performance or interruption of service on the Platform which result directly or indirectly from any cause or condition beyond Templum Markets direct and reasonable control, including but not limited to, any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, pandemic, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
In accordance with SEC Rule 17a-3(a)(18)(ii) Subscriber complaints, if any, may be reported to Templum Markets by telephone at (646) 973-3350 or email at email@example.com or by mail at the following address:
Templum Markets LLC
401 West 14th Street, 4th Floor
New York, NY 10014
Attn: Chief Compliance Officer
This Agreement will be governed and interpreted under the laws of the State of New York with respect to its conflicts of laws principles. The parties consent to the personal jurisdiction of New York County, New York for all matters relating to this Agreement.
You agree that if Templum Markets does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Templum Markets has the benefit of under any applicable law), such failure to exercise such right or remedy may not be construed as a waiver of any other rights and remedies of Templum Markets. If any provision of this Agreement is held to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable.
Subscribers that access the Platform to engage in the buying or selling of Securities agree that they are engaging Templum Markets to assist in providing the Services in connection with one or more transactions. In addition, Subscribers agree to the following:
As part of the Services,Templum Markets allows users to submit orders to buy or sell securities. By your use of the Platform you understand and acknowledge that:
For securities offered pursuant to Regulation A only, you understand and acknowledge that upon submitting an order to buy or sell a Security on the Platform, you also authorize DriveWealth LLC, a broker-dealer registered with the SEC and a member of FINRA, to serve a corresponding settlement function of such order. Please note, Templum Markets does not guarantee or otherwise have responsibility for settling any trades on the Platform and is not responsible for the movement of cash or Securities.
As applicable, Subscriber agrees to pay Templum Markets a fee foreach transaction that it enters into on the Platform. The sales fee will be equal to a percentage of the purchase price of the Securities and the fee will be disclosed at the point of submission of an order to buy or sell theSecurities. The sales fee may be payable by both buyers and sellers that are matched in a transaction on the Platform.
By accepting this Agreement, Subscriber understands, agrees and represents as follows:
I. The Subscriber has the fullcapacity, power and authority to execute and deliver this Agreement and anySecurities transactions on the Platform. This Agreement is the legal, valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except to the extent (i) such enforceability is limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or other similar laws relating to or affecting generally the enforcement of creditors, rights, and (ii) the availability of the remedy of specific performance or injunctive or other equitable relief is subject to the discretion of the court before which any proceeding therefor may be brought;
II. Any Subscriber that sells Securities on or through the Platform is the owner of the Securities. There are no outstanding subscriptions, warrants, calls, commitments, pledges, security agreements, restrictions against transfer, voting trusts or arrangements of any kind with respect to the Securities that have not been complied with or adequately waived that would serve to impose any restriction or transfer of theSecurities;
III. Any Subscriber that buys Securities on or through the Platform has the authority to purchase such Securities and shall comply with all applicable laws, rules and regulations;
IV. The execution and delivery of thisAgreement, the consummation of the transactions contemplated under thisAgreement in accordance with the terms of this Agreement, and the performance by Subscriber of its obligations hereunder will not conflict with, or result in any violation of or default under, any agreement, the governing documents ofSubscriber, or other instrument to which Subscriber is a party or bound;
V. The Subscriber is responsible for obtaining such legal, investment, tax and other professional advice as it considers appropriate in connection with the execution, delivery and performance of this Agreement and the transactions contemplated under thisAgreement (including any resale and transfer restrictions referred to herein);
VI. The Subscriber understands that investments in the Securities involve risk, and that the value of anySecurities may fluctuate up and down which may result in complete loss of investment. Furthermore, Subscriber understands that an investment in the Securities may be illiquid or subject to certain transfer restrictions which it will consider (and be solely responsible for considering) prior to entering into any transaction;
VII. All offering materials, descriptions of Securities or any other documentation or descriptions related to anySecurities, or issuers thereof, on the Platform are provided by the issuer of the applicable Securities, and not Templum Markets. As such, Subscriber understands that Templum Markets, and any of its affiliates or subsidiaries, bear no liability for any inaccuracy, omission or misleading statements in any materials or statements of any Issuer;
VIII. All Securities when issued, sold, purchased and delivered will be, and are, validly issued and free of restrictions on transfer other than restrictions on transfer, applicable state and federal securities laws and liens or encumbrances of any kind; and
IX. No Subscriber will offer, sell or otherwise dispose of Securities on or through the Platform except in accordance with all provisions, requirements and restrictions of the Securities Act, and all other applicable state, local and foreign law.
Subscriber acknowledges and agrees that Templum Markets owns all transaction data generated from the performance of this Agreement and a rising out of each transaction that takes place on the Platform and all rights therein.
Subscriber hereby grants to Templum Markets a non-exclusive, non-assignable, non-transferable, worldwide, irrevocable license to receive and use information and data that Subscriber orSubscriber’s agent enters intoPlatform (“Subscriber’s Data”) for the following purposes:
I. Within data aggregated through the Platform (“Platform Data”) for performing self-regulatory functions;
II. For internal commercial purposes (i.e., purposes that do not include disclosing, publishing, or distributing outside of Platform); and
III. For use within Platform market data products (i.e., products that include disclosure, publication, or distribution to third parties),
Provided, however that:(i) such market data products are provided in an aggregate manner that does not directly or indirectly identify Subscriber as the source of the information and, (ii) as applicable, fees for any such market data product are filed with the Securities and Exchange Commission (“SEC”) in accordance with the requirements of Section 19 of the Securities Exchange Act of 1934.
Subject to the foregoing license, as between Templum Markets and Subscriber, Subscriber retains all ownership and other rights associated with Subscriber’s Data. No provision in thisAgreement shall impair any right, interest, or use of Subscriber’s Data granted by operation of SEC rules or any other rule or law. Subscriber represents and warrants that, with respect to Subscriber’s Data (i) Subscriber owns or has sufficient rights in and to Subscriber’s Data to authorize Templum Markets to use Subscriber’s Data to perform all obligations under this Agreement with respect thereto; (ii) use or delivery of Subscriber’s Data by Subscriber orTemplum Markets will not violate the proprietary rights (including, without limitation, any privacy rights) of any party; and (iii) use or delivery ofSubscriber’s Data by Subscriber or Templum Markets will not violate any applicable law or regulation.
Unless otherwise required by law, Subscriber may not sell, lease, furnish or otherwise permit or provide access to Platform or any information or data made available therein in any format whatsoever (“Data”), with the exception of Subscriber’s Data, to any other entity or to any individual that is not Subscriber’s employee, customer, agent, sponsored account or authorized designee. Subscriber accepts full responsibility for its employees’, customers’, agents’, sponsored accounts’ and authorized designees’ use of Platform, which use must comply with PlatformRules and the Subscriber’s obligations under this Agreement. Subscriber will take reasonable security precautions to prevent unauthorized use of or access to Platform, including unauthorized entry of information into Platform, or the information and data made available therein. Without limiting the generality of the foregoing, Subscriber shall insure that all internal use of Platform Data:(i) clearly and prominently identifies the information as originating fromPlatform where applicable; (ii) is adequately protected to prevent unauthorized access; and (iii) is not altered by Subscriber to make it materially incorrect or misleading in any way. Subscriber may not convey, retransmit, republish or rebroadcast any Platform Data to any outside party unless it signs and complies with a separate agreement with Platform regarding Data usage.
THE CONTENT AND ALL SERVICES ASSOCIATED WITH OR PROVIDED THROUGH THE PLATFORM ARE PROVIDED TO YOUON AN “AS-IS” AND “AS AVAILABLE” BASIS. TEMPLUM MARKETS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES OR OPERATION OF THE PLATFORM. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND THE PLATFORM IS AT YOUR SOLE RISK.
TEMPLUM MARKETS MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SERVICES OR THE PLATFORM, WHETHER SUCH SERVICES ARE PROVIDED BY TEMPLUM MARKETS OR BY A THIRD PARTY ON THE PLATFORM,AND TEMPLUM MARKETS EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. TEMPLUM MARKETS MAKES NO REPRESENTATION,WARRANTY OR GUARANTEE THAT THE SERVICES THAT MAY BE AVAILABLE THROUGH THE PLATFORM ARE FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATAOR PERSONAL INFORMATION.
Each Subscriber understands, acknowledges and agrees that Templum Markets and the Platform are not:
NONE OF TEMPLUM MARKETS, THE SERVICES, OR THE PLATFORM ARE INTENDED TO PROVIDE LEGAL, TAX,INVESTMENT OR FINANCIAL ADVICE. Although the Platform may provide data, information, or content relating to investment strategies and/or opportunities to buy and/or sell Securities, you should not construe any such content as tax, legal, financial, or investment advice.
NONE OF TEMPLUM MARKETS OR ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS,CONSULTANTS AND ADVISORS SHALL IN ANY EVENT BE RESPONSIBLE OR LIABLE TO YOU ORTO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE)OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY,LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT,REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR YOUR USE OF THE PLATFORM, THE SERVICES OR THIS AGREEMENT, EVEN IF TEMPLUM MARKETS ORITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIABILITY OF TEMPLUM MARKETS AND ITS AFFILIATES, IN THE AGGREGATE, TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT OF FEES YOU HAVE ACTUALLY PAID TO TEMPLUM MARKETS FOR THE SERVICES WITHIN THE PAST ONE-YEAR.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, ANY SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
You shall defend, indemnify and hold harmless Templum Markets and its affiliates, officers, directors, shareholders, employees, agents, consultants and advisers, from and against all claims and expenses, including claims from and against any and all third-parties, and including but not limited to attorney’s fees, in whole or in part arising out of or attributable to any actual or alleged breach of thisAgreement, including, without limitation, any violation or alleged violation of any applicable law, or arising out of or attributable to Subscriber’s use of thePlatform and the Services.
Templum Markets represents: (i) that Templum Markets is registered with the SEC as a broker-dealer and the Platform is registered as an alternative trading system; and (ii) that Templum Markets has a statutory obligation to protect investors and the public interest, and to ensure that quotation information supplied to investors and the public is fair and informative, and not discriminatory, fictitious or misleading. Accordingly, Subscriber agrees that Templum Markets, when required to do so in fulfillment of its statutory obligations, may, temporarily or permanently, unilaterally condition, modify or terminate the right of any or all individuals or entities, including Subscriber, to receive or use the Platform. Templum Markets shall undertake reasonable efforts to notify Subscriber of any such condition, modification or termination, andSubscriber shall promptly comply with any requirement that may be contained in such notice within such period of time as may be determined in good faith byTemplum Markets to be necessary and consistent with its statutory obligations.Any individual or entity that receives such a notice shall have available to it such procedural protections as are provided to it by the Securities ExchangeAct of 1934 and the applicable rules thereunder.
By utilizing thePlatform or the Services you understand and agree as follows:
You agree that all controversies between you and Templum Markets, its respective affiliates, and its respective officers, directors, employees, agents or representatives shall be determined by arbitration. Such controversies include, but are not limited to, those involving any transaction or the provision of any Services or product, or the construction, performance or breach of any agreement between us, whether entered into or occurring prior, or subsequent to the date hereof.
Any arbitration as a result of this Agreement or use of the Platform shall be conducted only before the Financial Industry Regulatory Authority, Inc. (“FINRA”) in accordance with the FINRA rules then in effect, and each of you and Templum Markets consent to such jurisdiction. The venue for the arbitration shall be New York, New York, unless the FINRA rules require otherwise. The parties agree and consent to have the arbitration panel apply New York law to the dispute. All awards rendered by the arbitrators shall be binding and final, and judgment upon any such award may be entered in any court of competent jurisdiction.
By utilizing thePlatform or the Services you understand and agree that all transactions taking place on the Platform shall be governed by the terms of the standard PurchaseAgreement below. Further, you understand and agree that certain terms, including but not limited to, the date, information of buyer and seller, typeof security, name of issuer, purchase price, and custodial partner, will be deemed to be populated with the information of such transaction as of the time such transaction was entered into on the Platform.
ThisPurchase Agreement (this “Agreement”), dated as of [INSERT DATE] is by and between [INSERT NAME OF SELLER] (the “Seller”) and [INSERT NAME OF BUYER] (the“Buyer”) (each a “Party” and collectively, the “Parties”).
WHEREAS, the Seller is selling those certain [TYPE OF SECURITY] interests in [NAME OF ISSUER] (the “Securities”);
WHEREAS, the Parties hereto desire that the Seller sell, transfer, convey and assign to the Buyer, and that the Buyer purchase and acquire from the Seller, theSecurities and any and all rights and benefits incident to the ownership thereof (including, without limitation, any auction bidding rights pertaining to the Securities);
NOW,THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
SECTION1. Sale and Purchase of Securities; Closing.
1.1 Sale and Purchase. Subject to the terms and conditions of this Agreement, the Seller hereby sells, conveys, assigns and delivers to the Buyer, and the Buyer hereby purchases from the Seller, theSecurities and any and all rights and benefits incident to the ownership thereof, for and in consideration of delivery by the Buyer of the sum of [INSERT PURCHASE PRICE] (the “Purchase Price”) payable to the Seller.
1.2 Closing. The transfer of the Securities pursuant to this Agreement shall occur simultaneously with the delivery to the Seller of the consideration described in Section 1.1 above. The purchase and sale of the Securities will be effected through the electronic platform (the“Platform”) operated by Templum Markets, LLC (the “Intermediary”). Buyer agrees to arrange for the PurchasePrice to be paid by wire transfer from the Buyer’s custodial account to theSeller’s custodial account, each custodial account maintained by [NAME OF CUSTODIAL PARTNER].
SECTION2. Representations and Warranties of Buyer. The Buyer represents and warrants to the Seller, as of the date hereof, as follows:
2.1 Organization; Authority. The Buyer, if nota natural person, is an entity duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation with full right, corporate, partnership or other applicable power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Buyer of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the part of the Buyer. This Agreement, when executed and delivered by the Buyer, will constitute a valid and legally binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except: (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally; (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies; or (c) to the extent the indemnification provisions contained here in may be limited by federal or state securities laws.
2.2 No Conflicts; Advice. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Buyer is subject or any provision of any organizational documents or other similar governing instruments or agreements applicable to the Buyer or theSecurities, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which the Buyer is a party or is bound. The Buyer has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase of the Securities.
2.3 Investment Representations. In connection with Buyer’s receipt of theSecurities, Buyer represents and confirms that it is acquiring the Securities for its own account and for investment purposes. Buyer understands that the purchase of the Securities is a speculative investment involving a high degree of risk. Buyer understands that the business of the issuer of the Securities is subject to numerous risks and uncertainties. In addition, Buyer is aware that there is no guarantee that Buyer will realize any gain from an investment in theSecurities.
2.4 Unsolicited Offer by Buyer. The Buyer has made an unsolicited offer to buy the Securities of the Seller at a private sale for investment, exempt from the registration requirements of Section 5 of theSecurities Act of 1933, as amended.
SECTION3. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyer, as of the date hereof, as follows:
3.1 Authorization of Agreement. The Seller, if not a natural person, is any entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with full right, corporate, partnership or other applicable power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the Seller of the transactions contemplated by thisAgreement have been duly authorized by all necessary corporate or similar action on the part of the Seller. This Agreement, when executed and delivered by theSeller, will constitute a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except: (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.
3.2 No Previous Sale or Adverse Claim. TheSeller has not otherwise sold or transferred the Securities to any third party, in whole or in part. There are no outstanding subscriptions, warrants, calls, commitments, pledges, security agreements, restrictions against transfer, voting trusts or arrangements of any kind with respect to the Securities that have not been complied with or adequately waived that would serve to impose any restriction or transfer of theSecurities.
3.3 Legal and Beneficial Owner. The Seller is the legal and beneficial owner of the Securities and may sell and transfer theSecurities free and clear of any and all liens, security interests or encumbrances of any kind or nature whatsoever.
3.4 Sophisticated Party. The Seller is a sophisticated party and has independently obtained adequate and appropriate information upon which it has based its decision to enter into this Agreement.
3.5 No Conflicts; Advice. Neither the execution and delivery of thisAgreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which the Seller is subject or any provision of its organizational documents or other similar governing instruments or agreements(including any documents or agreements that may set forth any restrictions on transfer of the Securities), or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which the Seller is a party. The offer and sale of the Securities by Seller to Buyer will be effected in accordance with the requirements and restrictions set forth in applicable federal and state securities laws, including any required hold periods set forth in Section 4(1) of the Securities Act of 1933, as amended, Rule 144 promulgated thereunder or otherwise.
3.6 No Issuer Inducement. The Seller acknowledges that neither the Issuer nor any agent or representative of theIssuer has made any representation whatsoever to the Seller to induce theSeller to sell the Securities and that any representation or warranty is specifically disclaimed. Based on such information as the Seller has deemed appropriate, Seller has made its own analysis and decision to enter into thisAgreement.
3.7 Unsolicited Offer by Seller. The Seller has made an unsolicited offer to sell the Securities to the Buyer at a private sale for investment, exempt from the registration requirements of Section 5 of the Securities Act of 1933, as amended.
SECTION 4. Survival of Representations and Warranties; Etc. All representations and warranties of the Buyer and the Seller shall survive the closing hereunder. TheBuyer and the Seller may each rely upon this Agreement for the purpose of assuring its compliance with applicable law.
SECTION 5. Indemnification. Each Party hereto shall indemnify, defend and hold harmless, the other Party (and its respective affiliates, directors, managers, members, officers, employees, agents, successors and assigns) from and against any and all losses, claims, damages, liabilities and expenses it may suffer based upon, arising out of or otherwise in respect of, any inaccuracy in, or any breach of, the representations or warranties of such Party and the covenants or agreements made by such Party in this Agreement.
SECTION 6. Appointment of Agent. Each Party agrees and acknowledges that it has appointed the Intermediary to act as its agent solely for the purpose of facilitating the purchase and sale of theSecurities on the Platform, and not as a representative or advocate of eitherParty. The terms pursuant to whichIntermediary was appointed as an agent of each Party is set forth in a separate agreement between each Party and the Intermediary and the use of the Platform is otherwise subject to terms and conditions applicable to participants and transactions on the Platform. Intermediary is not liable for any act or omission of either Party under this Agreement. Buyer and Seller both acknowledge that the respective transaction commission due to the Intermediary in connection with the transaction will be payable by each Party at the time of closing.
SECTION 7. Legal Document; Opportunity for Independent Legal Review. Each of Buyer and Seller acknowledge that this is an important legal document and that it is necessary for each of Buyer and Seller to carefully review it before signing. Each of Buyer and Seller acknowledges that it has the right to engage an attorney and such other professional advisors it considers to be appropriate at its expense to review this Agreement, the terms of the transaction contemplated hereby, and to advise such Buyer or Seller with respect to its terms before signing it. Each of Buyer and Seller further confirms that neither the Intermediary or its advisers represents Buyer or Seller in an individual capacity with respect to the transaction contemplated by this Agreement and is not providing either Buyer or Seller with personal legal or tax advice with respect to the transaction contemplated by this Agreement. It is the responsibility of each of Buyer and Seller to secure legal and tax advice from its personal lawyers, tax professionals and advisors as it relates to the transaction set forth in this Agreement.
SECTION 8. Notices. All notices, requests and other communications to a Party(“Notices”) under this Agreement must be in writing (including email so long asa receipt of such email transmission is requested and received) and will be given to the addresses set forth below. All Notices must be delivered by (a)personal delivery, (b) reputable overnight delivery service (including FederalExpress, UPS and DHL), or (c) email, in each case to the respective address listed below or later provided by a party pursuant to this Section 8. A notice will be deemed to have been made on the date (i) of delivery with respect to(a), (ii) of delivery or the date on which delivery was refused as indicated on the delivery service’s record of delivery with respect to (b), and (iii)indicated in the confirmation of transmission or receipt if transmitted during business hours, or the next business day if transmitted after business hours, with respect to delivery by email as contemplated in subsection (c).
[INSERT NAME] [INSERT ADDRESS]
[INSERT CITY AND STATE]
[INSERT NAME] [INSERT ADDRESS]
[INSERT CITY AND STATE]
SECTION 9. Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the Parties hereto and their respective successors, heirs, personal representatives, and permitted assigns.
SECTION10. Counterparts. This Agreement may be executed in any number of duplicate originals or counterparts, each of which will be deemed to be an original and which, taken together, will constitute buy one and the same instrument. TheParties agree that their respective signatures may be delivered by fax or .pdf by email, and that fax and emailed signatures will be treated as originals for all purposes.
SECTION 11. Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the Parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefore, and upon so agreeing, shall incorporate such substitute provision in this Agreement.
SECTION 12. Entire Agreement; Waivers. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof. No waiver of the provisions hereof shall be effective unless in writing and signed by the party to be charged with such waiver. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, either of similar or different nature, unless expressly so stated in writing. Should any clause, section or part of this Agreement be held or declared to be void or illegal for any reason, all other clauses, sections or parts of this Agreement which can be effected without such illegal clause, section or part shall nevertheless continue in full force and effect.
SECTION 13. Amendments. Except as may be specifically provided herein, no change, modification, amendment, addition or termination of this Agreement or any part thereof shall be valid unless in writing and signed by both Parties.
SECTION 14. Headings; Captions. The headings or captions under sections of this Agreement are for convenience and reference only and do not in any way modify, interpret or construe the intent of the Parties or affect any of the provisions of thisAgreement.
SECTION 15. Further Assurances. Each of the Buyer and the Seller hereby agrees and provides further assurances that it will, in the future, execute and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed, all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purposes of thisAgreement.
SECTION 16. Governing Law, Arbitration, etc.
16.1 Choice of Law; Venue. This Agreement shall be governed by and interpreted and construed in accordance with the laws of theState of New York without regard to conflict of laws principles. Each party hereto consents to the exclusive jurisdiction and venue of the Courts of theState of New York located in the County of New York and the United StatesDistrict Court for the Southern District of New York with respect to any matter relating to this Agreement and performance of its respective obligations hereunder, each party hereto consents to the personal jurisdiction of such courts and shall subject itself to such personal jurisdiction.
(a) This Agreement contains a pre-dispute arbitration clause. By signing this Agreement, the Parties agree as follows:(i) the Parties to this Agreement are giving up their rights to sue each other in court, including the rights to a trial by jury, except as provided by the rules of the arbitration forum in which a claim is filed; (ii) arbitration awards are generally final and binding: a Party’s ability to have a court reverse or modify an arbitration award is very limited; (iii) the ability of the Parties to obtain documents, witness statements and other discovery is generally more limited in arbitration than in court proceedings; (iv) the arbitrators do not have to explain the reason(s) for their award; (v) the panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry; (vi) the rules of some arbitration forums may impose time limits for bringing a claim in arbitration. In some cases, a claim that is ineligible for arbitration may be brought in court;(vii) the rules of the arbitration forum in which the claim is filed, and any amendments thereto, shall be incorporated into this agreement.
(b) No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action, or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action, until: (i) the class certification is denied; (ii) the class is decertified; or(iii) the person is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement except to the extent stated herein.
(c) By signing this Agreement, Seller andBuyer agree that controversies arising under or relating to this Agreement between Seller and Buyer, and any of their respective successors, assigns, and any of their officers, directors, employees or agents, whether arising prior to, on, or subsequent to the date hereof, shall be determined by binding arbitration conducted at the facilities or venues, before an arbitration panel appointed by, and pursuant to the FINRA Code of Arbitration. The award of the arbitrators, or of the majority of them, shall be final, and judgment upon the award rendered may be entered in any court, state or federal, having competent jurisdiction.
(d) Seller and Buyer knowingly, voluntarily, and intentionally waive their rights to a trial by jury to the extent permitted by law in any action or other legal proceeding, whether sounding in contract, tort or otherwise, arising out of or relating to this Agreement.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the date first written above.
[INSERT NAME OF SELLER] (Seller)
Name: [INSERT NAME]
Title: [INSERT TITLE]
[INSERT NAME OF BUYER] (Buyer)
Name: [INSERT NAME]
Title: [INSERT TITLE]