Representations and Warranties of the Company Contract Clauses (3,414)

Representations and Warranties of the Company. The Company represents and warrants as follows: 6.1 The Company is duly existing and in good standing as a corporation in its jurisdiction of formation and is qualified and licensed to do business and is in good standing in any other jurisdiction in which the conduct of its business or ownership of property requires that it to be qualified, except where the failure to do so could not reasonably be expected to have a material adverse effect on the Company's business. 6.2 The execution, delivery a...nd performance by the Company of this Note and the Warrant has been duly authorized, and do not (i) conflict with any of the Company's organizational documents; (ii) contravene, conflict with, constitute a default under or violate any material law applicable to the Company; (iii) contravene, conflict or violate any applicable order, writ, judgment, injunction, decree, determination or award of any governmental authority by which the Company or any of its Subsidiaries or any of their property or assets may be bound or affected; (iv) require any action by, filing, registration, or qualification with, or governmental approval from any governmental authority (except such governmental approvals which have already been obtained and are in full force and effect); or (v) constitute an event of default under any material agreement by which the Company is bound. 6.3 There are no material actions or proceedings pending or threatened by or against the Company, except as set forth in the Company's annual report on Form 10-K for the year ended December 31, 2011 and its report on Form 10-Q for the quarter ended September 30, 2012 filed with the Securities and Exchange Commission (the "SEC Reports"). 6.4 All financial statements of the Company contained in its SEC Reports fairly present in all material respects the Company's financial position and the Company's results of operations as of the dates thereof, and for the periods indicated therein, subject in the case of the unaudited financial statements to normal year-end audit adjustments. -2- 6.5 The Company's SEC Reports, as of their respective dates or, if amended, as of the date of the last such amendment, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. View More

Representations and Warranties of the Company. The Company hereby represents and warrants to the Holder that (i) it has the corporate power and authority to execute this Warrant and consummate the transactions contemplated by this Warrant, (ii) there are no statutory or contractual stockholders' preemptive rights or rights of refusal with respect to the issuance of any Warrants and (iii) the execution and delivery by the Company of this Warrant and the issuance of the Common Stock upon exercise of any Warrant do not and shall not (A) conflic...t with or result in a breach of the terms, conditions or provisions of, (B) constitute a default under, (C) result in the creation of any lien, security interest, charge or encumbrance upon the Company's capital stock or assets pursuant to, (D) result in a violation of, or (E) require any authorization, consent, approval, exemption or other action by or notice or declaration to, or filing with, any court or administrative or governmental body or agency pursuant to, the Company's certificate of incorporation or bylaws or any law in effect as of the date hereof to which the Company is subject, or any agreement, instrument, order, judgment or decree to which the Company is subject as of the date hereof, except for any such authorization, consent, approval, notice or exemption required under applicable securities laws. View More

Representations and Warranties of the Company. 3.2 Authorization. 3.3 Capitalization. 3.4 Valid Issuance. 3.6 Delivery of SEC Filings; Business. 3.7 Use of Proceeds. 3.8 No Material Adverse Change. 3.9 SEC Filings. 3.10 No Conflict, Breach, Violation or Default. 3.11 Tax Matters. 3.12 Title to Properties. 3.14 Labor Matters. 3.15 Intellectual Property. 3.16 Environmental Matters. 3.18 Financial Statements. 3.19 Insurance Coverage. 3.20 Brokers and Finders. 3.21 No Directed Selling Efforts or General Solicitation. 3.22 No Integrated Offering.... 3.23 Private Placement. 3.24 Bad Actor Disqualification. 3.25 Questionable Payments. 3.26 Transactions with Affiliates. 3.27 Internal Controls. 3.29 Application of Takeover Protections. 3.30 Disclosure. 3.31 Shell Company Status. 3.32 Each of the Investors acknowledges and agrees that the Company has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in this Section 3. View More

Representations and Warranties of the Company. 2.1.1 Pursuant to the Act. 2.1.2 Pursuant to the Exchange Act. 2.1.3 No Stop Orders, Etc. 2.2Disclosures in Registration Statement. 2.2.1 10b-5 Representation. 2.2.2 Disclosure of Agreements. 2.2.3 Prior Securities Transactions. 2.2.4 Regulations. 2.3Changes After Dates in Registration Statement. 2.3.1 No Material Adverse Change. 2.3.2 Recent Securities Transactions. 2.4Independent Accountants. 2.5Financial Statements; Statistical Data. 2.5.1 Financial Statements. 2.5.2 Statistical Data. 2.6Auth...orized Capital; Options. 2.7Valid Issuance of Securities. 2.7.1 Outstanding Securities. 2.7.2 Securities Sold Pursuant to this Agreement. 2.7.3 Placement Securities. 2.7.4 No Integration. 2.8Registration Rights of Third Parties. 2.9Validity and Binding Effect of Agreements. 2.10No Conflicts, Etc. 2.11No Defaults; Violations. 2.12Corporate Power; Licenses; Consents. 2.12.1 Conduct of Business. 2.12.2 Transactions Contemplated Herein. 2.13D&O Questionnaires. 2.14Litigation; Governmental Proceedings. 2.15Good Standing. 2.16No Contemplation of a Business Combination. 2.17Transactions Requiring Disclosure to FINRA. 2.17.1 Finder's Fees. 2.17.2 Payments Within 180 Days. 2.17.3 FINRA Affiliation. 2.17.4 Share Ownership. 2.17.5 Loans. 2.17.6 Proceeds of the Offering. 2.17.7 Conflicts of Interest. 2.18Taxes. 2.18.1 There are no transfer taxes or other similar fees or charges under U.S. federal law or the laws of any U.S. state or any political subdivision of the United States, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Public Securities. 2.18.2 The Company has filed all U.S. federal, state and local tax returns required to be filed with taxing authorities prior to the date hereof in a timely manner or has duly obtained extensions of time for the filing thereof (except in any case in which the failure so to file would not have a Material Adverse Effect). 2.19Foreign Corrupt Practices Act; Anti-Money Laundering; Patriot Act. 2.19.1 Foreign Corrupt Practices Act. 2.19.2 Currency and Foreign Transactions Reporting Act. 2.19.3 Patriot Act. 2.20Officers' Certificate. 2.21Agreements With Insiders. 2.21.1 Insider Letter. 2.21.2 Purchase Agreements. 2.21.3 Registration Rights Agreement. 2.21.4 Loans. 2.22Investment Management Trust Agreement. 2.23Warrant Agreement. 2.24No Existing Non-Competition Agreements. 2.25Investments. 2.26Investment Company Act. 2.27Subsidiaries. 2.28Related Party Transactions. 2.29No Influence. 2.30Sarbanes-Oxley. 2.31Distribution of Offering Material by the Company. 2.32Listing on Nasdaq. 2.33Board of Directors. 2.34Emerging Growth Company. 2.35No Disqualification Events. 2.36Free-Writing Prospectus and Testing-the-Waters. View More

Representations and Warranties of the Company. 2.1.1.Pursuant to the Securities Act. 2.1.2.Pursuant to the Exchange Act. 2.3No Stop Orders, etc. 2.4Disclosures in Registration Statement. 2.4.1.Compliance with Securities Act and 10b-5 Representation. 2.4.2.Disclosure of Agreements. 2.4.3.Prior Securities Transactions. 2.4.4.Regulations. 2.5Changes After Dates in Registration Statement. 2.5.1.No Material Adverse Change. 2.5.2.Recent Securities Transactions, etc. 2.6Independent Accountants. 2.7Financial Statements, etc. 2.8Authorized Capital; O...ptions, etc. 2.9Valid Issuance of Securities, etc. 2.9.1.Outstanding Securities. 2.9.2.Securities Sold Pursuant to this Agreement. 2.11Validity and Binding Effect of Agreements. 2.12No Conflicts, etc. 2.13No Defaults; Violations. 2.14Corporate Power; Licenses; Consents. 2.14.1.Conduct of Business. 2.14.2.Transactions Contemplated Herein. 2.15D&O Questionnaires. 2.16Litigation; Governmental Proceedings. 2.17Good Standing. 2.18Insurance. 2.19Transactions Affecting Disclosure to FINRA. 2.19.1.Finder's Fees. 2.19.2.Payments Within Twelve (12) Months. 2.19.3.Use of Proceeds. 2.19.4.FINRA Affiliation. 2.19.5.Information. 2.20Foreign Corrupt Practices Act. 2.21Compliance with OFAC. 2.22Money Laundering Laws. 2.24Lock-Up Agreements. 2.25Subsidiaries. 2.26Related Party Transactions. 2.27Board of Directors. 2.28Sarbanes-Oxley Compliance. 2.28.1.Disclosure Controls. 2.28.2.Compliance. 2.29Accounting Controls. 2.30No Investment Company Status. 2.31No Labor Disputes. 2.32Intellectual Property Rights. 2.33Taxes. 2.34ERISA Compliance. 2.35Compliance with Laws. 2.36Ineligible Issuer. 2.37Real Property. 2.38Contracts Affecting Capital. 2.39Loans to Directors or Officers. 2.40Smaller Reporting Company. 2.41Industry Data. 2.42Emerging Growth Company. 2.43Testing-the-Waters Communications. 2.44Electronic Road Show. 2.45Margin Securities. View More

Representations and Warranties of the Company. The Company represents and warrants to you that each of the representations and warranties contained in paragraph of the Note Purchase Agreement is true and correct as of the date hereof (unless limited to an earlier date, in which case, as of such earlier date) (i) except that all references to "Purchaser" and "you" therein shall be deemed to refer to you and the Other Purchasers hereunder, all references to "this Agreement" shall be deemed to refer to the Note Purchase Agreement as supplemente...d by this Supplement, and all references to "Notes" therein shall be deemed to include the Series [ ] Notes, and (ii) except for changes to such representations and warranties or the Schedules referred to therein that are set forth in the attached Schedule 6. View More

Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser that as of the Closing hereunder: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has all necessary corporate power and authority to (i) own, operate and occupy its properties and to carry on its business as presently conducted, and (ii) enter into this Agreement and the other agreements, instruments and documents contemplated hereby, and to consummate the ...transactions contemplated hereby and thereby. The Company is qualified to do business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect. (b) All necessary corporate proceedings, votes, resolutions and approvals relating to the issuance and sale of the Shares will have been completed by the Company. Upon execution, this Agreement will constitute a valid and legally binding obligation of the Company, enforceable in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. (c) The Shares purchased pursuant to this Agreement will be, upon payment by the Purchaser in accordance with this Agreement, duly authorized, validly issued, fully paid, non-assessable, and free of all liens, claims and encumbrances. View More

Representations and Warranties of the Company. The Company represents and warrants as of the date hereof to the Investor as follows: (a) it has the full corporate power and authority to enter into this Subscription and to perform all of its obligations hereunder; (b) this Subscription has been duly authorized and executed by, and when delivered in accordance with the terms hereof, will constitute a valid and binding agreement of, the Company enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy,... insolvency, reorganization, moratorium or similar laws affecting the rights and remedies of creditors generally or subject to general principles of equity; (c) the execution and delivery of this Subscription and the consummation of the transactions contemplated hereby do not conflict with or result in a breach of the Company's charter or by-laws, as amended or restated to date, or any other organizational documents; (d) the Securities, when issued and paid for in accordance with the terms of this Subscription, will be duly authorized, validly issued, fully paid and non-assessable; (e) the Registration Statement, at the time it became effective, did not, and as of the time hereof and as of the Closing, does not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (f) this Subscription, the Registration statement, Securities, the offering, and any associated materials and statements materially comply with all applicable laws, rules, and regulations, including without limitation United States federal and state securities laws; and (g) the Securities are being offered and sold pursuant to the Company's effective registration statement under the Securities Act of 1933, as amended (the "Securities Act"), on Form S-3 (File No. 333-218916), effective as of June 30, 2017. View More

Representations and Warranties of the Company. The Company hereby represents and warrants to the Collateral Agent that the statements contained in the following paragraphs of this Section 2 are all true and correct immediately prior to the execution of the Debenture. 2.1 Title. The Company owns all right, title and interest in and to the Collateral. 2.2 Right to Grant Interest. The Company has the right to grant the security interest under this Agreement to Collateral Agent in the Collateral. 2.3 No Bankruptcy. Company is not subject to any ...bankruptcy case or insolvency proceedings before any court in any jurisdiction. In the ninety (90) days preceding the date of this Agreement, the Company has not received any threat from any third party to subject the Company to any involuntary bankruptcy or insolvency proceeding. View More

Representations and Warranties of the Company. As an inducement to the Purchaser to enter into this Agreement and consummate the transaction contemplated hereby, the Company hereby makes the following representations and warranties, each of which is true and correct on the date hereof and will be true and correct on the closing date: 4.1 Organization. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware and is duly authorized to conduct business as currently conducted. 4....2 Authority. The Company has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the Company, enforceable in accordance with its terms. The execution, delivery, and performance of this Agreement and all other agreements contemplated hereby have been duly authorized by the Company. 4.3 Non-Contravention. The execution and delivery of this Agreement by the Company and the observance and performance of the terms and provisions contained herein do not constitute a violation or breach of any applicable law, or any provision of any other contract or instrument to which the Company is a party or by which it is bound, or any order, writ, injunction, decree, statute, rule, by-law or regulation applicable to the Company. 4.4 Litigation. There are no actions, suits, or proceedings pending or, to the best of the Company's knowledge, threatened, which could in any manner restrain or prevent the Company from effectually and legally selling the Unit pursuant to the terms and provisions of this Agreement. The Company is not a party to any litigation except as has been disclosed in its Form 10-K filed with the Securities and Exchange Commission (the "SEC"). 4.5 Brokers' Fees. The Company has no liability or obligation to pay fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement. 4.6 Reporting Company/Not a Shell Company. The Company is a publicly-held company subject to reporting obligations pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act") and has a class of common stock registered pursuant to Section 12(g) of the Exchange Act. The Company is not and never has been a "shell company" as that term is defined in Rule 144 under the Securities Act of 1933 (the "Act"). 4.7 SEC Reports. The Company has filed with the SEC all reports required to be filed since January 1, 2005. None of the reports filed with the SEC contained any material statements which were not true and correct or omitted to state any statements of material fact necessary in order to make the statements made not misleading. 4.8 Listing. The Company's common stock is quoted on the Over-the-Counter Bulletin Board (the "Bulletin Board") under the symbol "ESPH". The Company has not received any oral or written notice that its common stock is not eligible nor will become ineligible for quotation on the Bulletin Board nor that its common stock does not meet all requirements for the continuation of such quotation. The Company satisfies all the requirements for the continued quotation of its common stock on the Bulletin Board. 4.9 Outstanding Securities. All issued and outstanding shares of capital stock and equity interests in the Company have been duly authorized and validly issued and are fully paid and non-assessable. 4.10 No Material Adverse Change. Since August 11, 2014 (filing date of the last Form 10-Q), there has not been individually or in the aggregate a Material Adverse Change with respect to the Company. For the purposes of this Agreement, "Material Adverse Change" means any event, change or occurrence which, individually or together with any other event, change, or occurrence, could result in a material adverse change on the Company or material adverse change on its business, assets, financial condition, or results of operations. Provided, however, a Material Adverse Change does not exist solely because (i) there are changes in the economy, credit markets or capital markets, or (ii) changes generally affecting the industry in which the Company operates. View More