(H) Solvency. Counterparty is, and shall be as of the date of any payment or delivery by Counterparty under the Transaction, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the businesses in which it engages. Counterparty: (i) has not engaged in and will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (ii) has not incurred and does not intend to incur debts beyond its ability to pay as they mature, and (iii) as a result of entering into and performing its obligations under the Transaction, (a) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of its own securities and (b) it would not be nor would it be rendered insolvent (as such term is defined under Section 101(32) of the Bankruptcy Code).
(I) Authorization. The Transaction has been entered into pursuant to authority granted by Counterpartys board of directors. There is no internal policy of Counterparty, whether written or oral, that would prohibit Counterparty from entering into any aspect of the Transaction, including, but not limited to, the purchase of Shares to be made pursuant hereto.
(J) Public Reports. As of the Trade Date, Counterparty is in compliance with its reporting obligations under the Exchange Act, and all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with the most recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.
(K) No Distribution. Counterparty is not entering into the Transaction to facilitate a distribution of the Shares (or any security that may be converted into or exercised or exchanged for Shares, or whose value under its terms may in whole or in significant part be determined by the value of the Shares) or in connection with any future issuance of securities.
Transactions by Nomura in the Shares
Nomura hereby waives its redemption rights pursuant to Section 9.2 of the Amended and Restated Certificate of Incorporation of GigCapital, Inc. dated as of December 7, 2017, as amended from time to time, in connection with a Business Combination closing prior to December 12, 2019, with respect to any Shares purchased by Nomura during the period beginning on the Trade Date and ending on the Pricing Date (such Shares, the Subject Shares).
Counterparty and Nomura agree that Nomura shall not become or be considered an affiliate (as defined in Rule 144 under the Securities Act) of the Issuer at any time during the term of the Transaction.
Nomura may sell any of the Subject Shares in one or more public or private transactions at any time prior to the Original Valuation Date or the Extended Valuation Date (if the Valuation Date is extended as provided herein); provided that in no event will Nomura sell any such Share for less than the Forward Price. Any Subject Shares sold by Nomura during the term of the Transaction will cease to be Subject Shares. After the Pricing Date, Nomura may buy and sell Shares for its own account or on behalf of third parties, and the pricing limitation in the first sentence of this paragraph shall not apply to any Shares purchased after the Pricing Date.
Nomura will give written notice to Counterparty of any sale of Subject Shares by Nomura within two (2) Business Days of the date of such sale, such notice to include the date of the sale, the number of Subject Shares sold, and confirmation that the sale price per Subject Share was not less than the Forward Price.
Matters Relating to Nomura and Agent
(i) Nomura is not registered as a broker or dealer under the Securities Exchange Act of 1934, as amended (the Exchange Act). Nomura Securities International, Inc. (Agent) has acted solely as agent for Nomura and Counterparty to the extent required by law in connection with the Transaction and has no obligations, by way of issuance, endorsement, guarantee or otherwise, with respect to the performance of either party under the