Company Representations, Warranties and Covenants. Little Squaw represents, warrants and covenants (and acknowledges that the Subscriber is relying on such representations, warranties and covenants) that, at the Closing Date: a. each of Little Squaw and each of its subsidiaries is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation, and Little Squaw has no subsidiaries other than as set forth in the Company’s annual report on Form 10-K for the year ended December 31, 2004; b. each of Little Squaw and each of its subsidiaries is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction; c. Little Squaw and its subsidiaries own, possess or have obtained, and are operating in compliance with, all governmental, administrative and third party licenses, permits, certificates, registrations, approvals, consents and other authorizations (collectively, “Permits”) necessary to own or lease (as the case may be) and operate their properties, and to conduct their businesses or operations as currently conducted, except such Permits the failure of which to obtain would not have a material adverse effect on the business, properties, operations, financial condition or results of operations of Little Squaw or its subsidiaries, and neither Little Squaw nor any of its subsidiaries has received any notice of proceedings relating to the revocation, modification or suspension of any Permits), if such proceedings would have a material adverse effect on Little Squaw, or any circumstance which would lead it to believe that such proceedings are reasonably likely; d. the business and operations of Little Squaw and its subsidiaries have been conducted in accordance with all applicable laws, rules and regulations of all governmental authorities, except for such violations which would not, individually or in the aggregate, have a material adverse effect on the financial condition or business of Little Squaw and its subsidiaries; e. the authorized capital of Little Squaw consists of (i) 200,000,000 shares of common stock and (ii) 10,000,000 shares of preferred stock. As of December 12, 0000, Xxxxxx Xxxxx had (A) 16,833,420 shares of common stock issued and outstanding, (B) no shares of preferred stock issued and outstanding, (C) outstanding options and/or warrants exercisable to purchase up to 4,520,000 shares of common stock, and (D) outstanding convertible debentures convertible to acquire 5,000,000 shares of common stock ; f. Little Squaw will reserve or set aside sufficient shares of common stock in its treasury to issue the Common Shares issuable upon exercise of the Warrants, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as fully paid and non-assessable; g. the issue and sale of the Securities by Little Squaw does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Little Squaw is a party; h. Little Squaw has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the Units; i. there are no legal or governmental actions, suits, proceedings or investigations pending or, to Little Squaw’s knowledge, threatened, to which Little Squaw or any of its subsidiaries is or may be a party or of which property owned or leased by Little Squaw or any of its subsidiaries is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on Little Squaw; j. there are no judgments against Little Squaw or any of its subsidiaries, if any, which are unsatisfied, nor is Little Squaw or any of its subsidiaries, if any, subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body; k. this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of Little Squaw, and Little Squaw has full corporate power and authority to undertake this offering; l. this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law; m. neither Little Squaw nor any of its subsidiaries is in violation of its organizational or incorporating documents nor in violation of, or in default under, any lien, mortgage, lease, agreement or instrument, except for such defaults which would not, individually or in the aggregate, have a material adverse effect on the financial condition, properties or business of Little Squaw or it subsidiaries; n. subject to the accuracy of the representations and warranties of the Subscriber contained in this Agreement, the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the U.S. Securities Act, from the registration or qualifications requirements of the state securities or “blue sky” laws and regulations of any applicable state or other applicable jurisdiction; o. Little Squaw’s shares of common stock are quoted for trading on the National Association of Securities Dealers over-the-counter electronic bulletin board (the “OTCBB”), p. no order ceasing, halting or suspending trading in securities of Little Squaw nor prohibiting the sale of such securities has been issued to and is outstanding against Little Squaw or its directors, officers or promoters, and, to the best of Little Squaw’s knowledge, no investigations or proceedings for such purposes are pending or threatened; q. neither Little Squaw nor any subsidiary thereof will have taken any action which would be reasonably expected to result in the delisting or suspension of quotation of Little Squaw’s shares of common stock on or from the OTCBB and Little Squaw will have complied, in all material respects, with the rules and regulations of eligibility on the OTCBB; r. except for (i) a cash commission in the amount of 10% payable to Strata Partners and certain selling agents and (ii) agent’s warrants, equal to 10% of the number to the number of Units subscribed for hereby, to be issued to Strata Partners and certain selling agents, no person, firm or corporation acting or purporting to act at the request of Little Squaw is entitled to any brokerage, agency or finder’s fee in connection with the purchase and sale of the Securities described herein; s. Little Squaw is a "reporting issuer" under section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and is not in default of any of the requirements of the 1934 Act; t. as of their respective filing dates, each report, schedule, registration statement and proxy filed by Little Squaw with the United States Securities and Exchange Commission (“SEC”)(each, an “SEC Report” and collectively, the “SEC Reports”) (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), (i) where required, were prepared in all material respects in accordance with the requirements of the U.S. Securities Act, or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports, (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) are all the forms, reports and documents required to be filed by Little Squaw with the SEC since that time. Little Squaw’s subsidiaries are not required to file any reports or other documents with the SEC. Each set of audited consolidated financial statements and unaudited interim financial statements of Little Squaw (including any notes thereto) included in the SEC Reports (i) complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of Little Squaw as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount. To Little Squaw’s knowledge, no events or other factual matters exist which would require Little Squaw to file any amendments or modifications to any SEC Reports which have not yet been filed with the SEC but which are required to be filed with the SEC pursuant to the U.S. Securities Act or the 1934 Act; u. Each SEC Report containing financial statements that has been filed with or submitted to the SEC since July 31, 2002, was accompanied by the certifications required to be filed or submitted by Little Squaw’s chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”); at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither Little Squaw nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certification; v. there is no fact known to Little Squaw which Little Squaw has not publicly disclosed which materially adversely affects, or so far as Little Squaw can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of Little Squaw or the ability of Little Squaw to perform its obligations under this Agreement; w. Except as disclosed in the SEC Reports, Little Squaw and its subsidiaries, if any, have filed all federal, state, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; x. Little Squaw has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of Little Squaw or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of Little Squaw which are known by Little Squaw’s management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of Little Squaw; y. Little Squaw is not an "investment company" within the meaning of the Investment Company Act of 1940; z. neither Little Squaw nor any of its affiliates, nor any person acting on its or their behalf (i) has made or will make any “directed selling efforts” (as such term is defined in Regulation S of the U.S. Securities Act) in the United States, or (ii) has engaged in or will engage in any form of “general solicitation” or “general advertising” (as such terms are defined in Rule 502 (c) under Regulation D of the U.S. Securities Act) in the United States with respect to offers or sales of the Securities; aa. Little Squaw has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Securities and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities Act to become unavailable with respect to the offer and sale of the Securities; bb. the warranties and representations in this section are true and correct and will remain so as of the Closing Date; and cc. Little Squaw shall indemnify, defend and hold the Subscriber (which term shall, for the purposes of this Section, include the Subscriber or its shareholders, managers, partners, directors, officers, members, employees, direct or indirect investors, agents and affiliates and assignees and the stockholders, partners, directors, members, managers, officers, employees direct or indirect investors and agents of such affiliates and assignees) harmless against any and all liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with an untrue, inaccurate or breached statement, representation, warranty or covenant of Little Squaw contained herein. Little Squaw undertakes to notify the Subscriber immediately of any change in any representation, warranty or other material information relating to Little Squaw set forth in this Agreement which takes place prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (Little Squaw Gold Mining Co)
Company Representations, Warranties and Covenants. Little Squaw Golden River represents, warrants and covenants that, at the Closing Date (and an acknowledges that the Subscriber is relying on such representations, warranties and covenants) that, at the Closing Date:):
a. each of Little Squaw Golden River and each of its subsidiaries is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation, and Little Squaw Golden River has no subsidiaries other than as set forth in the Company’s 's annual report on Form 10-K for the year ended December 31June 30, 20042005;
b. each of Little Squaw Golden River and each of its subsidiaries is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
c. Little Squaw Golden River and its subsidiaries own, possess or have has obtained, and are xxx xx operating in compliance with, all governmental, administrative and third party licenses, permits, certificates, registrations, approvals, consents and other authorizations (collectively, “Permits”"PERMITS") necessary to own or lease (as the case may be) and operate their its properties, and to conduct their its businesses or operations as currently conducted, except such Permits the failure of which to obtain would not have a material adverse effect on the business, properties, operations, financial condition or results of operations of Little Squaw or its subsidiariesGolden River, and neither Little Squaw Golden River nor any of its subsidiaries has received any notice of proceedings relating to the revocation, modification or suspension of any Permits), if such proceedings would have a material adverse effect on Little SquawGolden River, or any circumstance which would lead it to believe that such proceedings are reasonably likely;
d. the business and operations of Little Squaw Golden River and its subsidiaries have been conducted in accordance with all applicable laws, rules and regulations of all governmental authorities, except for such violations which would not, individually or in the aggregate, have a material adverse effect on the financial condition or business of Little Squaw Golden River and its subsidiaries;
e. the authorized capital of Little Squaw Golden River consists of (i) 200,000,000 shares of common stock and (ii) 10,000,000 shares of preferred stock. As of December 12, 0000, Xxxxxx Xxxxx had (A) 16,833,420 shares of common stock issued and outstanding, (B) no shares of preferred stock issued and outstanding, (C) outstanding options and/or warrants exercisable to purchase up to 4,520,000 50,000,000 shares of common stock, of which there were (i) 26,711,630 shares issued and outstanding as of May 25, 2006 as fully paid and non-assessable shares (excluding 2,500 treasury shares) and (Dii) options and/or warrants to purchase 21,350,000 shares of common stock. On May 30, 2006, Golden River filed a definitive information statement with the SEC with respect to a proposed action by written consent of the holder of a majority of the outstanding convertible debentures convertible to acquire 5,000,000 shares of common stock ;to increase the number of authorized shares to 100,000,000.
f. Little Squaw Golden River will reserve or set aside sufficient shares of common stock in its treasury to issue the Common Shares issuable upon exercise of the WarrantsSecurities, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as fully paid and non-assessable;
g. the issuance of the Securities will not be subject to any pre-emptive right or other contractual right to purchase securities granted by Golden River or to which Golden River is bound;
h. the issue and sale of the Securities by Little Squaw Golden River does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Little Squaw Golden River is a party;
h. Little Squaw i. the Corporation has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the UnitsOffering;
i. j. there are no legal or governmental actions, suits, proceedings or investigations pending or, to Little Squaw’s Golden River' knowledge, threatened, to which Little Squaw Golden River or any of its subsidiaries is or may be a party or of which property owned or leased by Little Squaw Golden River or any of its subsidiaries is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on Little SquawGolden River;
j. k. there are no judgments against Little Squaw Golden River or any of its subsidiaries, if any, which are unsatisfied, nor is Little Squaw Golden River or any of its subsidiaries, if any, subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body;
k. l. this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of Little SquawGolden River, and Little Squaw Golden River has full corporate power and authority to undertake this offeringthe Private Placement;
l. m. this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
m. n. neither Little Squaw Golden River nor any of its subsidiaries is in violation of its organizational or incorporating documents nor in violation of, or in default under, any lien, mortgage, lease, agreement or instrument, except for such defaults which would not, individually or in the aggregate, have a material adverse effect on the financial condition, properties or business of Little Squaw Golden River or it subsidiaries;
n. o. subject to the accuracy of the representations and warranties of the Subscriber contained in this Agreement, the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the U.S. Securities 1933 Act, from the registration or qualifications requirements of the state securities or “"blue sky” " laws and regulations of any applicable state or other applicable jurisdiction;
o. Little Squaw’s p. Golden River' shares of common stock are quoted for trading on the National Association of Securities Dealers over-the-counter electronic bulletin board (the “"OTCBB”"),
p. q. no order ceasing, halting or suspending trading in securities of Little Squaw Golden River nor prohibiting the sale of such securities has been issued to and is outstanding against Little Squaw Golden River or its directors, officers or promoters, and, to the best of Little Squaw’s Golden River knowledge, no investigations or proceedings for such purposes are pending or threatened;
q. r. neither Little Squaw Golden River nor any subsidiary thereof will have taken any action which would be reasonably expected to result in the delisting or suspension of quotation of Little Squaw’s Golden River' shares of common stock on or from the OTCBB and Little Squaw Golden River will have complied, in all material respects, with the rules and regulations of eligibility on the OTCBB;
r. except for (i) a cash commission in the amount of 10% payable to Strata Partners and certain selling agents and (ii) agent’s warrants, equal to 10% of the number to the number of Units subscribed for hereby, to be issued to Strata Partners and certain selling agents, s. no person, firm or corporation acting or purporting to act at the request of Little Squaw Golden River is entitled to any brokerage, agency or finder’s 's fee in connection with the purchase and sale of the Securities described herein;
s. Little Squaw t. Golden River is a "reporting issuer" under section 12 of the Securities Exchange Act of 1934, as amended (the “"1934 Act”ACT") and is not in default of any of the requirements of the 1934 Act; t. ;
u. as of their respective filing dates, each report, schedule, registration statement, information statement and proxy filed by Little Squaw Golden River with the United States Securities and Exchange Commission (“SEC”)(each"SEC")(each, an “"SEC Report” REPORT" and collectively, the “"SEC Reports”REPORTS") (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), (i) where required, were prepared in all material respects in accordance with the requirements of the U.S. Securities 1933 Act, or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports, (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) are all the forms, reports and documents required to be filed by Little Squaw Golden River with the SEC since that time. Little Squaw’s Golden River' subsidiaries are not required to file any reports or other documents with the SEC. Each set of audited consolidated financial statements and unaudited interim financial statements of Little Squaw Golden River (including any notes thereto) included in the SEC Reports (i) complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of Little Squaw Golden River as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount. To Little Squaw’s Golden River' knowledge, no events or other factual matters exist which would require Little Squaw Golden River to file any amendments or modifications to any SEC Reports which have not yet been filed with the SEC but which are required to be filed with the SEC pursuant to the U.S. Securities 1933 Act or the 1934 Act;
u. v. Each SEC Report containing financial statements that has been filed with or submitted to the SEC since July 31, 2002, was accompanied by the certifications required to be filed or submitted by Little Squaw’s Golden River' chief executive officer and chief financial officer pursuant to the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002 (the “Xxxxxxxx"SARBANES-Xxxxx Act”OXLEY ACT"); at the time of filing xx xiling or submission of each such xx xxxx xxxx certification, such certification was true and accurate and complied with the XxxxxxxxSarbanes-Xxxxx Oxley Act and the rules and regulations promulgated thereunderpromulgxxxx xxxxxxxxer; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither Little Squaw Golden River nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certification;
v. w. there is no fact known to Little Squaw Golden River which Little Squaw Golden River has not publicly disclosed which materially adversely affects, or so far as Little Squaw Golden River can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of Little Squaw Golden River or the ability of Little Squaw Golden River to perform its obligations under this Agreement;
w. x. Except as disclosed in the SEC Reports, Little Squaw Golden River and its subsidiaries, if any, have filed all federal, federal state, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; x. Little Squaw y. Golden River has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of Little Squaw Golden River or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of Little Squaw Golden River which are known by Little Squaw’s Golden River' management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of Little Squaw;
y. Little Squaw Golden River; z. is not an "investment company" within the meaning of the Investment Company Act of 1940;
z. aa. neither Little Squaw Golden River nor any of its affiliates, nor any person acting on its or their behalf (i) has made or will make any “"directed selling efforts” " (as such term is defined in Regulation S of the U.S. Securities 1933 Act) in the United States, or (ii) has engaged in or will engage in any form of “"general solicitation” " or “"general advertising” " (as such terms are defined in Rule 502 (c) under Regulation D of the U.S. Securities 1933 Act) in the United States with respect to offers or sales of the Securities;
aabb. Little Squaw the Corporation has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Securities Units and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities 1933 Act to become unavailable with respect to the offer and sale of the Securities;
bbcc. Golden River will cause a favourable legal opinion to be delivered at Closing by its counsel addressed to the Subscriber with respect to such matters as the Subscriber may reasonably request relating to this transaction, acceptable in all reasonable respects to the Subscribers' counsel, acting reasonably, including to the effect that:
(i) Golden River is existing and in good standing under the laws of its jurisdiction of incorporation and has all requisite corporate power and authority to carry on its business as presently carried on and to own and lease its assets where such assets are owned or leased;
(ii) Golden River has all necessary corporate capacity and authority to enter into and perform its obligations under this Agreement and to issue and sell the Securities;
(iii) this Agreement and the obligations under the Warrant have been duly authorized by Golden River and constitute legally binding obligations upon Golden River and is enforceable in accordance with their respective terms (subject to the usual qualifications);
(iv) registration under the 1933 Act of the Securities is not required for the offer and sale thereof to the Subscriber in accordance with the provisions of this Agreement; and
(v) such other matters as counsel to the Subscriber may reasonably require in connection with this Agreement.
dd. the warranties and representations in this section are true and correct and will remain so as of the Closing Date; and
ccee. Little Squaw Golden River shall indemnify, defend and hold the Subscriber (which term shall, for the purposes of this Section, include the Subscriber or its shareholders, managers, partners, directors, officers, members, employees, direct or indirect investors, agents and affiliates and assignees and the stockholders, partners, directors, members, managers, officers, employees direct or indirect investors and agents of such affiliates and assignees) harmless against any and all liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with an untrue, inaccurate or breached statement, representation, warranty or covenant of Little Squaw Golden River contained herein. Little Squaw Golden River undertakes to notify the Subscriber immediately of any change in any representation, warranty or other material information relating to Little Squaw Golden River set forth in this Agreement which takes place prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (Golden River Resources Corp.)
Company Representations, Warranties and Covenants. Little Squaw Legend represents, warrants and covenants that, at the Closing Date (and Legend acknowledges that the Subscriber is relying on such representations, warranties and covenants) that, at the Closing Date:):
a. each of Little Squaw and each of its subsidiaries Legend is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation, and Little Squaw Legend has no subsidiaries other than as set forth in the Company’s annual report on Form 10-K for the year ended December 31an inactive subsidiary called Legend Consolidated Group, 2004Inc.;
b. each of Little Squaw and each of its subsidiaries Legend is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
c. Little Squaw and its subsidiaries ownLegend owns, possess possesses or have has obtained, and are is operating in compliance with, all governmental, administrative and third party licenses, permits, certificates, registrations, approvals, consents and other authorizations (collectively, “"Permits”") necessary to own or lease (as the case may be) and operate their its properties, and to conduct their its businesses or operations as currently conducted, except such Permits the failure of which to obtain would not have a material adverse effect on the business, properties, operations, financial condition or results of operations or prospects of Little Squaw or its subsidiariesLegend (a "Material Adverse Effect"), and neither Little Squaw nor any of its subsidiaries Legend has not received any notice of proceedings relating to the revocation, modification or suspension of any Permits), if such proceedings Permits which would have a material adverse effect on Little SquawMaterial Adverse Effect, or any circumstance which would lead it to believe that such proceedings are reasonably likely;
d. the business and operations of Little Squaw and its subsidiaries Legend have been conducted in accordance with all applicable laws, rules and regulations of all governmental authorities, except for such violations which as would not, individually or in the aggregate, have a material adverse effect on the financial condition or business of Little Squaw and its subsidiariesMaterial Adverse Effect;
e. the authorized capital of Little Squaw Legend consists of (iA) 200,000,000 300,000,000 shares of common stock stock, of which there were (i) 157,968,825 shares issued and (ii) 10,000,000 shares of preferred stock. As outstanding as of December 12, 0000, Xxxxxx Xxxxx had 2007 as fully paid and non-assessable shares; (Aii) 16,833,420 options and/or warrants to purchase 3,033,630 shares of common stock issued stock; and outstanding, (Biii) no shares of preferred stock issued and outstanding, (C) outstanding employee options and/or warrants exercisable to purchase up to 4,520,000 14,050,000 shares of common stock, and (DB) outstanding convertible debentures convertible to acquire 5,000,000 20,000,000 shares of common stock preferred stock, par value $.001 per share, none of which were outstanding as of December 12, 2007;
f. Little Squaw Legend will reserve or set aside sufficient shares of common stock in its treasury to issue the Common Shares issuable upon exercise of the WarrantsSecurities, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as issued, fully paid and non-assessable;
g. the issuance of the Securities will not be subject to any pre-emptive right or other contractual right to purchase securities granted by Legend or to which Legend is bound;
h. the issue and sale of the Securities by Little Squaw Legend does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Little Squaw Legend is a party;
h. Little Squaw i. Legend has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the Unitsthis Agreement;
i. j. there are no legal or governmental actions, suits, proceedings or investigations pending or, to Little Squaw’s Legend's knowledge, threatened, to which Little Squaw or any of its subsidiaries Legend is or may be a party or of which property owned or leased by Little Squaw or any of its subsidiaries Legend is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on Little SquawMaterial Adverse Effect;
j. k. there are no judgments against Little Squaw or any of its subsidiaries, if any, Legend which are unsatisfied, nor is Little Squaw or any of its subsidiaries, if any, Legend subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body;
k. l. this Agreement has been or will be by the Closing Date, Date duly authorized by all necessary corporate action on the part of Little SquawLegend, and Little Squaw Legend has full corporate power and authority to undertake enter into and perform its obligations under this offeringAgreement;
l. m. this Agreement has been duly authorized, executed and delivered by the Corporation Company and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
m. neither Little Squaw nor any of its subsidiaries n. Legend is not in violation of its organizational or incorporating documents nor in violation of, or in default under, any lien, mortgage, lease, agreement or instrument, except for such defaults which would not, individually or in the aggregate, have a material adverse effect on the financial condition, properties or business of Little Squaw or it subsidiariesMaterial Adverse Effect;
n. o. subject to the accuracy of the representations and warranties of the Subscriber contained in this Agreement, the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the U.S. Securities 1933 Act, and from the registration or qualifications qualification requirements of the state securities or “"blue sky” " laws and regulations of any applicable state or other applicable jurisdiction;
o. Little Squaw’s p. Legend's shares of common stock Common Stock are quoted for trading on the National Association of Securities Dealers over-the-counter electronic bulletin board (the “"OTCBB”"),;
p. q. no order ceasing, halting or suspending trading in securities of Little Squaw Legend nor prohibiting the sale of such securities has been issued to and is outstanding against Little Squaw Legend or its directors, officers or promoters, and, to the best of Little Squaw’s Legend knowledge, no investigations or proceedings for such purposes are pending or threatened;
q. neither Little Squaw nor any subsidiary thereof will have r. Legend has not taken any action which would be reasonably expected to result in the delisting or suspension of quotation of Little Squaw’s Legend's shares of common stock on or from the OTCBB and Little Squaw will have complied, Legend has complied in all material respects, respects with the rules and regulations of eligibility on the OTCBB;
r. except for (i) a cash commission in the amount of 10% payable to Strata Partners and certain selling agents and (ii) agent’s warrants, equal to 10% of the number to the number of Units subscribed for hereby, to be issued to Strata Partners and certain selling agents, s. no person, firm or corporation acting or purporting to act at the request of Little Squaw Legend is entitled to any brokerage, agency or finder’s 's fee in connection with the purchase and sale of the Securities described herein, except for BBY Limited;
s. Little Squaw t. Legend is a "reporting issuer" under section 12 of the Securities Exchange Act of 1934, as amended (the “"1934 Act”") and is not in default of in any material respect in any of the reporting requirements of the 1934 Act; t. ;
u. as of their respective filing dates, since January 1, 2007, each report, schedule, registration schedule information statement and proxy statement filed by Little Squaw Legend with the United States Securities and Exchange Commission (“SEC”)(each"SEC") (each, an “"SEC Report” " and collectively, the “"SEC Reports”") (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), (i) where required, were prepared in all material respects in accordance with the requirements of the U.S. Securities Act, 1933 Act or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports, (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) are all the forms, reports and documents required to be filed by Little Squaw Legend with the SEC since that time. Little Squaw’s subsidiaries are not required to file any reports or other documents with the SEC. Each set of audited consolidated financial statements and unaudited interim financial statements of Little Squaw Legend (including any notes thereto) included in the SEC Reports (i) complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of Little Squaw Legend as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount. To Little Squaw’s Legend's knowledge, no events or other factual matters exist which would require Little Squaw Legend to file any amendments or modifications to any SEC Reports which have not yet been filed with the SEC but which are required to be filed with the SEC pursuant to the U.S. Securities 1933 Act or the 1934 Act, except for such amendments as may be necessary to comply with the SEC staff comments on the 2007 Form SB-2. If the proposed spin-off of the Company's uranium properties is completed, the record date for the distribution of the spin-off shares to stockholders shall occur on a date following the Closing Date;
u. v. Each SEC Report containing financial statements that has been filed with or submitted to the SEC since July 31January 1, 20022007, was accompanied by the certifications required to be filed or submitted by Little Squaw’s Legend's chief executive officer and chief financial officer pursuant to the XxxxxxxxSarbanes-Xxxxx Oxley Act of 2002 (the “Xxxxxxxx"Sarbanes-Xxxxx Oxley Act”"); at the time of filing xx xiling or submission of each such xx xxxx xxxx certification, such certification was true and accurate and complied with the XxxxxxxxSarbanes-Xxxxx Oxley Act and the rules and regulations promulgated thereunderpromulgxxxx xxxxxxxxer; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither Little Squaw Legend nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certification;
v. w. there is no fact known to Little Squaw Legend which Little Squaw Legend has not publicly disclosed which materially adversely affects, or so far as Little Squaw Legend can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of Little Squaw Legend or the ability of Little Squaw Legend to perform its obligations under this Agreement;
w. x. Except as disclosed in the SEC Reports, Little Squaw and its subsidiaries, if any, have Legend has filed all federal, state, local and foreign tax returns which are required to be filed, or have has requested extensions thereof, and have has paid all taxes required to be paid by them it and any other assessment, fine or penalty levied against themit, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; x. Little Squaw ;
y. Legend has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of Little Squaw or its subsidiaries, if any, Legend except for taxes not yet due, and there are no audits of any of the tax returns of Little Squaw Legend which are known by Little Squaw’s Legend's management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of Little SquawMaterial Adverse Effect;
y. Little Squaw z. Legend is not an "investment company" within the meaning of the Investment Company Act of 1940;
z. aa. neither Little Squaw nor any of its affiliates, Legend nor any person acting on its or their behalf (i) has made or will make any “"directed selling efforts” " (as such term is defined in Regulation S of the U.S. Securities 1933 Act) in the United States, or (ii) has engaged in or will engage in any form of “"general solicitation” " or “"general advertising” " (as such terms are defined in Rule 502 (c) under Regulation D of the U.S. Securities 1933 Act) in the United States with respect to offers or sales of the Securities;
aabb. Little Squaw the Company has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Purchased Securities and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities 1933 Act to become unavailable with respect to the offer and sale of the Securities;
bbcc. Legend will cause a favorable legal opinion to be delivered at Closing by its counsel addressed to the Subscriber with respect to such matters as the Subscriber may reasonably request relating to this transaction, acceptable in all reasonable respects to the Subscribers' counsel, acting reasonably, including to the effect that:
(i) Legend is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently carried on and to own and lease its assets where such assets are owned or leased;
(ii) Legend has all necessary corporate capacity and authority to enter into and perform its obligations under this Agreement and to issue and sell the Securities;
(iii) this Agreement has been duly authorized by Legend and constitutes legally binding obligations upon Legend and is enforceable in accordance with its terms (subject to the usual qualifications);
(iv) registration under the 1933 Act of the Securities is not required for the offer and sale thereof to the Subscriber in accordance with the provisions of this Agreement;
(v) the shares of Common Stock, $0.001 par value, of the Company outstanding prior to the issuance of the shares of Common Stock have been duly authorized and are validly issued, fully paid and non-assessable.
(vi) Legend has reserved and set aside sufficient shares of common stock in its treasury to issue the Securities, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued, fully paid and non-assessable;
(vii) the issuance of the Securities will not be subject to any pre-emptive right or other contractual right to purchase securities granted by Legend or to which Legend is bound;
(viii) the issue and sale of the Securities by Legend does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Legend is a party;
(ix) Legend is not an "investment company" within the meaning of the Investment Company Act of 1940;
(x) such other matters as counsel to the Subscriber may reasonably require in connection with this Agreement.
dd. the warranties and representations in this section are true and correct and will remain so as of the Closing Date; and
ccee. Little Squaw Legend shall indemnify, defend and hold the Subscriber (which term shall, for the purposes of this Section, include the Subscriber or and its shareholders, managers, partners, directors, officers, members, employees, direct or indirect investors, agents and affiliates and assignees and the stockholders, partners, directors, members, managers, officers, employees direct or indirect investors and agents of such affiliates and assignees) harmless against any and all liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with an untrue, inaccurate or breached statement, representation, warranty or covenant of Little Squaw Legend contained herein. Little Squaw Legend undertakes to notify the Subscriber immediately of any change in any representation, warranty or other material information relating to Little Squaw Legend set forth in this Agreement which takes place prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (Legend International Holdings Inc)
Company Representations, Warranties and Covenants. Little Squaw represents, warrants and covenants that, at the Closing Date (and acknowledges that the Subscriber is relying on such representations, warranties and covenants) that, at the Closing Date:):
a. each of Little Squaw and each of its subsidiaries is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation, and Little Squaw has no subsidiaries other than as set forth in the Company’s annual report on Form 10-K for the year ended December 31, 2004;
b. each of Little Squaw and each of its subsidiaries is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
c. Little Squaw and its subsidiaries own, possess or have has obtained, and are is operating in compliance with, all governmental, administrative and third party licenses, permits, certificates, registrations, approvals, consents and other authorizations (collectively, “Permits”) necessary to own or lease (as the case may be) and operate their its properties, and to conduct their its businesses or operations as currently conducted, except such Permits the failure of which to obtain would not have a material adverse effect on the business, properties, operations, financial condition or results of operations of Little Squaw or its subsidiariesSquaw, and neither Little Squaw nor any of its subsidiaries has received any notice of proceedings relating to the revocation, modification or suspension of any Permits), if such proceedings would have a material adverse effect on Little Squaw, or any circumstance which would lead it to believe that such proceedings are reasonably likely;
d. the business and operations of Little Squaw and its subsidiaries have been conducted in accordance with all applicable laws, rules and regulations of all governmental authorities, except for such violations which would not, individually or in the aggregate, have a material adverse effect on the financial condition or business of Little Squaw and its subsidiaries;
e. the authorized capital of Little Squaw consists of (i) 200,000,000 shares of common stock and (ii) 10,000,000 shares of preferred stock. As , of December 12which no shares were issued and outstanding and (ii) 200,000,000 shares of common stock, 0000, Xxxxxx Xxxxx had of which there were (A) 16,833,420 shares of common stock issued and outstandingoutstanding as of October 31, 2005 as fully paid and non-assessable shares and (B) no shares of preferred stock issued and outstanding, (C) outstanding options and/or warrants exercisable to purchase up to 4,520,000 shares of common stock, and (D) outstanding convertible debentures convertible to acquire 5,000,000 1,520,000 shares of common stock were outstanding as of October 31, 2005;
f. Little Squaw will reserve or set aside sufficient shares of common stock in its treasury to issue the Common Shares issuable upon conversion of the Debentures and exercise of the Warrants, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as fully paid and non-assessable;
g. the issuance of the Securities will not be subject to any pre-emptive right or other contractual right to purchase securities granted by Little Squaw or to which Little Squaw is bound;
h. the issue and sale of the Securities by Little Squaw does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Little Squaw is a party;
h. i. Little Squaw has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the UnitsOffering;
i. j. there are no legal or governmental actions, suits, proceedings or investigations pending or, to Little Squaw’s knowledge, threatened, to which Little Squaw or any of its subsidiaries is or may be a party or of which property owned or leased by Little Squaw or any of its subsidiaries is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on Little Squaw;
j. k. there are no judgments against Little Squaw or any of its subsidiaries, if any, which are unsatisfied, nor is Little Squaw or any of its subsidiaries, if any, subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body;
k. l. this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of Little Squaw, and Little Squaw has full corporate power and authority to undertake this offering;
l. m. this Agreement has been duly authorized, executed and delivered by the Corporation and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
m. n. neither Little Squaw nor any of its subsidiaries is in violation of its organizational or incorporating documents nor in violation of, or in default under, any lien, mortgage, lease, agreement or instrument, except for such defaults which would not, individually or in the aggregate, have a material adverse effect on the financial condition, properties or business of Little Squaw or it subsidiaries;
n. o. subject to the accuracy of the representations and warranties of the Subscriber contained in this Agreement, the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the U.S. Securities Act, from the registration or qualifications requirements of the state securities or “blue sky” laws and regulations of any applicable state or other applicable jurisdiction;
o. p. Little Squaw’s shares of common stock are quoted for trading on the National Association of Securities Dealers over-the-counter electronic bulletin board (the “OTCBB”),
p. q. no order ceasing, halting or suspending trading in securities of Little Squaw nor prohibiting the sale of such securities has been issued to and is outstanding against Little Squaw or its directors, officers or promoters, and, to the best of Little Squaw’s Squaw knowledge, no investigations or proceedings for such purposes are pending or threatened;
q. r. neither Little Squaw nor any subsidiary thereof will have taken any action which would be reasonably expected to result in the delisting or suspension of quotation of Little Squaw’s ’ shares of common stock on or from the OTCBB and Little Squaw will have complied, in all material respects, with the rules and regulations of eligibility on the OTCBB;
r. s. except for (i) a cash the commission in the amount of 10% payable to Strata Partners and certain selling agents and (ii) agent’s warrants, warrants equal to 10% of the number to common shares acquirable upon the number conversion of Units subscribed for hereby, to be issued the Debentures payable to Strata Partners and certain selling agentsPartners, no person, firm or corporation acting or purporting to act at the request of Little Squaw is entitled to any brokerage, agency or finder’s fee in connection with the purchase and sale of the Securities described herein;
s. t. Little Squaw is a "reporting issuer" under section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and is not in default of any of the requirements of the 1934 Act; t. ;
u. as of their respective filing dates, each report, schedule, registration statement and proxy filed by Little Squaw with the United States Securities and Exchange Commission (“SEC”)(each, an “SEC Report” and collectively, the “SEC Reports”) (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), (i) where required, were prepared in all material respects in accordance with the requirements of the U.S. Securities Act, or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports, (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) are all the forms, reports and documents required to be filed by Little Squaw with the SEC since that time. Little Squaw’s ’ subsidiaries are not required to file any reports or other documents with the SEC. Each set of audited consolidated financial statements and unaudited interim financial statements of Little Squaw Xxxxxx Xxxxx (including any notes thereto) included in the SEC Reports (i) complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of Little Squaw as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount. To Little Squaw’s knowledge, no events or other factual matters exist which would require Little Squaw to file any amendments or modifications to any SEC Reports which have not yet been filed with the SEC but which are required to be filed with the SEC pursuant to the U.S. Securities Act or the 1934 Act;
u. v. Each SEC Report containing financial statements that has been filed with or submitted to the SEC since July 31, 2002, was accompanied by the certifications required to be filed or submitted by Little Squaw’s ’ chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”); at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither Little Squaw nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certification;
v. w. there is no fact known to Little Squaw which Little Squaw has not publicly disclosed which materially adversely affects, or so far as Little Squaw can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of Little Squaw or the ability of Little Squaw to perform its obligations under this Agreement;
w. x. Except as disclosed in the SEC Reports, Little Squaw and its subsidiaries, if any, have filed all federal, state, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; x. ;
y. Little Squaw has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of Little Squaw or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of Little Squaw which are known by Little Squaw’s ’ management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of Little Squaw;
y. Little Squaw z. is not an "investment company" within the meaning of the Investment Company Act of 1940;
z. aa. neither Little Squaw nor any of its affiliates, nor any person acting on its or their behalf (i) has made or will make any “directed selling efforts” (as such term is defined in Regulation S of the U.S. Securities Act) in the United States, or (ii) has engaged in or will engage in any form of “general solicitation” or “general advertising” (as such terms are defined in Rule 502 (c) under Regulation D of the U.S. Securities Act) in the United States with respect to offers or sales of the Securities;
aa; bb. Little Squaw has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Securities and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities Act to become unavailable with respect to the offer and sale of the Securities;
bbcc. the warranties and representations in this section are true and correct and will remain so as of the Closing Date; and
ccand dd. Little Squaw shall indemnify, defend and hold the Subscriber (which term shall, for the purposes of this Section, include the Subscriber or its shareholders, managers, partners, directors, officers, members, employees, direct or indirect investors, agents and affiliates and assignees and the stockholders, partners, directors, members, managers, officers, employees direct or indirect investors and agents of such affiliates and assignees) harmless against any and all liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with an untrue, inaccurate or breached statement, representation, warranty or covenant of Little Squaw contained herein. Little Squaw undertakes to notify the Subscriber immediately of any change in any representation, warranty or other material information relating to Little Squaw set forth in this Agreement which takes place prior to the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement (Little Squaw Gold Mining Co)
Company Representations, Warranties and Covenants. Little Squaw Empire Energy represents, warrants and covenants that, except as set forth on Schedule 3 attached hereto, at the Closing Date (and an acknowledges that the Subscriber is relying on such representations, warranties and covenants) that, at the Closing Date:):
a. each of Little Squaw Empire Energy and each of its subsidiaries is a valid and subsisting corporation duly incorporated and in good standing under the laws of its jurisdiction of incorporation, and Little Squaw Empire Energy has no subsidiaries other than as set forth in the Company’s annual report on Form 10-K for the year ended December 31, 20042005 SEC Reports;
b. each of Little Squaw Empire Energy and each of its subsidiaries is duly registered and licensed to carry on business in the jurisdictions in which it carries on business or owns property where so required by the laws of that jurisdiction;
c. Little Squaw Empire Energy and its subsidiaries own, possess or have has obtained, and are is operating in compliance with, all governmental, administrative and third party licenses, permits, certificates, registrations, approvals, consents and other authorizations (collectively, “Permits”) necessary to own or lease (as the case may be) and operate their its properties, and to conduct their its businesses or operations as currently conducted, except such Permits the failure of which to obtain would not have a material adverse effect on the business, properties, operations, financial condition or results of operations of Little Squaw or its subsidiariesEmpire Energy, and neither Little Squaw Empire Energy nor any of its subsidiaries has received any notice of proceedings relating to the revocation, modification or suspension of any Permits), if such proceedings would have a material adverse effect on Little SquawEmpire Energy, or any circumstance which would lead it to believe that such proceedings are reasonably likely;
d. the business and operations of Little Squaw Empire Energy and its subsidiaries have been conducted in accordance with all applicable laws, rules and regulations of all governmental authorities, except for such violations which would not, individually or in the aggregate, have a material adverse effect on the financial condition or business of Little Squaw Empire Energy and its subsidiaries;
e. as of February 28, 2006, the authorized capital of Little Squaw Empire Energy consists of (i) 200,000,000 300,000,000 shares of common stock Common Stock. Schedule 3(e) of this Agreement sets forth issued and (ii) 10,000,000 outstanding capital of Empire Energy, including, but not limited to, shares of preferred stock. As of December 12Class A Common Stock, 0000, Xxxxxx Xxxxx had (A) 16,833,420 shares of common stock Class B Common Stock, exchangeable shares, options, warrants and other securities convertible into equity securities of Empire Energy (collective, the “Outstanding Securities”). There are no other securities of Empire Energy issued, or, except as set forth in Section 3(e) of this Agreement, reserved for issuance, or authorized or outstanding. All of the Outstanding Securities are duly authorized, validly issued, fully paid and non-assessable and none were issued and outstanding, (B) no shares in violation of preferred stock issued and outstanding, (C) outstanding options and/or warrants exercisable to purchase up to 4,520,000 shares any preemptive or subscription rights of common stock, and (D) outstanding convertible debentures convertible to acquire 5,000,000 shares of common stock any person;
f. Little Squaw Empire Energy will reserve or set aside sufficient shares of common stock in its treasury to issue the Common Shares issuable upon exercise of the WarrantsSecurities, and all such Securities will upon payment of the recited consideration and issuance be duly and validly issued as fully paid and non-assessable;
g. the issuance of the Securities will not be subject to any pre-emptive right or other contractual right to purchase securities granted by Empire Energy or to which Empire Energy is bound;
h. the issue and sale of the Securities by Little Squaw Empire Energy does not and will not conflict with, and does not and will not result in a breach of, any of the terms of its incorporating documents or any agreement or instrument to which Little Squaw Empire Energy is a party;
h. Little Squaw i. the Company has complied and will comply fully with the requirements of all applicable corporate and securities laws in all matters relating to the offering of the UnitsOffering;
i. j. there are no legal or governmental actions, suits, proceedings or investigations pending or, to Little Squaw’s Empire Energy’ knowledge, threatened, to which Little Squaw Empire Energy or any of its subsidiaries is or may be a party or of which property owned or leased by Little Squaw Empire Energy or any of its subsidiaries is or may be the subject, or related to environmental, title, discrimination or other matters, which actions, suits, proceedings or investigations, individually or in the aggregate, could have a material adverse effect on Little SquawEmpire Energy;
j. k. there are no judgments against Little Squaw Empire Energy or any of its subsidiaries, if any, which are unsatisfied, nor is Little Squaw Empire Energy or any of its subsidiaries, if any, subject to any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental body;
k. l. this Agreement has been or will be by the Closing Date, duly authorized by all necessary corporate action on the part of Little SquawEmpire Energy, and Little Squaw Empire Energy has full corporate power and authority to undertake this offeringthe Private Placement;
l. m. this Agreement has been duly authorized, executed and delivered by the Corporation Company and constitutes a valid and legally binding obligation of the Company enforceable against it in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
m. n. neither Little Squaw Empire Energy nor any of its subsidiaries is in violation of its organizational or incorporating documents nor in violation of, or in default under, any lien, mortgage, lease, agreement or instrument, except for such defaults which would not, individually or in the aggregate, have a material adverse effect on the financial condition, properties or business of Little Squaw Empire Energy or it subsidiaries;
n. o. subject to the accuracy of the representations and warranties of the Subscriber contained in this Agreement, the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of the U.S. Securities 1933 Act, from the registration or qualifications requirements of the state securities or “blue sky” laws and regulations of any applicable state or other applicable jurisdiction;
o. Little Squaw’s p. Empire Energy’ shares of common stock are quoted for trading on the National Association of Securities Dealers over-the-counter electronic bulletin board (the “OTCBB”),
p. q. no order ceasing, halting or suspending trading in securities of Little Squaw Empire Energy nor prohibiting the sale of such securities has been issued to and is outstanding against Little Squaw Empire Energy or its directors, officers or promoters, and, to the best of Little Squaw’s Empire Energy knowledge, no investigations or proceedings for such purposes are pending or threatened;
q. r. neither Little Squaw Empire Energy nor any subsidiary thereof will have taken any action which would be reasonably expected to result in the delisting or suspension of quotation of Little Squaw’s Empire Energy’ shares of common stock on or from the OTCBB and Little Squaw Empire Energy will have complied, in all material respects, with the rules and regulations of eligibility on the OTCBB;
r. s. except for (i) a cash commission in the amount of 10% payable to Strata Partners and certain selling agents and (ii) agent’s warrants, equal to 10% of the number to the number of Units subscribed for hereby, to be issued to Strata Partners and certain selling agentsLibertas Capital, no person, firm or corporation acting or purporting to act at the request of Little Squaw Empire Energy is entitled to any brokerage, agency or finder’s fee in connection with the purchase and sale of the Securities described herein;
s. Little Squaw t. Empire Energy is a "“reporting issuer" ” under section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) and to Empire Energy’s knowledge is not in default of any of the requirements of the 1934 Act; t. ;
u. as of their respective filing dates, each report, schedule, registration statement and proxy filed by Little Squaw Empire Energy with the United States Securities and Exchange Commission (“SEC”)(eachSEC”) (each, an “SEC Report” and collectively, the “SEC Reports”) (and if any SEC Report filed prior to the date of this Agreement was amended or superseded by a filing prior to the date of this Agreement, then also on the date of filing of such amendment or superseding filing), (i) to Empire Energy’s knowledge where required, were prepared in all material respects in accordance with the requirements of the U.S. Securities 1933 Act, or the 1934 Act, as the case may be, and the rules and regulations promulgated under such Acts applicable to such SEC Reports, (ii) did not contain any untrue statements of a material fact and did not omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) to Empire Energy’s knowledge are all the forms, reports and documents required to be filed by Little Squaw Empire Energy with the SEC since that time. Little SquawEmpire Energy’s subsidiaries are not required to file any reports or other documents with the SEC. Each set of audited consolidated financial statements and unaudited interim financial statements of Little Squaw Empire Energy (including any notes thereto) included in the SEC Reports (i) to Empire Energy’s knowledge, complies as to form in all material respects with the published rules and regulations of the SEC with respect thereto, and (ii) have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis (except as may be indicated therein or in the notes thereto) and fairly present, in all material respects, the financial position of Little Squaw Empire Energy as of the dates thereof and the results of its operations and cash flows for the periods then ended subject, in the case of the unaudited interim financial statements, to normal year-end adjustments which were not or are not expected to be material in amount. To Little SquawEmpire Energy’s knowledge, no events or other factual matters exist which would require Little Squaw Empire Energy to file any amendments or modifications to any SEC Reports which have not yet been filed with the SEC but which are required to be filed with the SEC pursuant to the U.S. Securities 1933 Act or the 1934 Act;
u. v. Each SEC Report containing financial statements that has been filed with or submitted to the SEC since July 31, 200231,2002, was accompanied by the certifications required to be filed or submitted by Little Squaw’s Empire Energy’ chief executive officer and chief financial officer pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”); to Empire Energy’s knowledge at the time of filing or submission of each such certification, such certification was true and accurate and complied with the Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated thereunder; such certifications contain no qualifications or exceptions to the matters certified therein and have not been modified or withdrawn; and neither Little Squaw Empire Energy nor any of its officers has received notice from any governmental entity questioning or challenging the accuracy, completeness, form or manner of filing or submission of such certification;
v. w. there is no fact known to Little Squaw Empire Energy which Little Squaw Empire Energy has not publicly disclosed which materially adversely affects, or so far as Little Squaw Empire Energy can reasonably foresee, will materially adversely affect, the assets, liabilities (contingent or otherwise), capital, affairs, business, prospects, operations or condition (financial or otherwise) of Little Squaw Empire Energy or the ability of Little Squaw Empire Energy to perform its obligations under this Agreement;
w. Except as disclosed in the SEC Reports, Little Squaw x. Empire Energy and its subsidiaries, if any, have filed all federal, state, local and foreign tax returns which are required to be filed, or have requested extensions thereof, and have paid all taxes required to be paid by them and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for such assessments, fines and penalties which are currently being contested in good faith; x. Little Squaw ;
y. Empire Energy has established on its books and records reserves which are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of Little Squaw Empire Energy or its subsidiaries, if any, except for taxes not yet due, and there are no audits of any of the tax returns of Little Squaw Empire Energy which are known by Little Squaw’s Empire Energy’ management to be pending, and there are no claims which have been or may be asserted relating to any such tax returns which, if determined adversely, would result in the assertion by any governmental agency of any deficiency which would have a material adverse effect on the properties, business or assets of Little SquawEmpire Energy;
y. Little Squaw z. is not an "“investment company" ” within the meaning of the Investment Company Act of 1940;
z. aa. neither Little Squaw Empire Energy nor any of its affiliates, nor any person acting on its or their behalf (i) has made or will make any “directed selling efforts” (as such term is defined in Regulation S of the U.S. Securities 1933 Act) in the United States, or (ii) has engaged in or will engage in any form of “general solicitation” or “general advertising” (as such terms are defined in Rule 502 (c) under Regulation D of the U.S. Securities 1933 Act) in the United States with respect to offers or sales of the Securities;
aabb. Little Squaw the Company has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited, and will not for a period of six months after the Closing Date, offer, sell or solicit, any offer to buy any of its securities in a manner that would be integrated with the offer and sale of the Securities Units and would cause the exemption from registration set forth in Rule 506 of Regulation D or Rule 903 of Regulation S of the U.S. Securities 1933 Act to become unavailable with respect to the offer and sale of the Securities;
bbcc. all securities previously issued by the Company were issued pursuant to registration under the 1933 Act or an available exemption thereunder;
dd. the warranties and representations representations, as limited by Schedule 3, in this section are true and correct and will remain so as of the Closing Date; and
ccee. Little Squaw Empire Energy shall indemnify, defend and hold the Subscriber (which term shall, for the purposes of this Section, include the Subscriber or its shareholders, managers, partners, directors, officers, members, employees, direct or indirect investors, agents and affiliates and assignees and the stockholders, partners, directors, members, managers, officers, employees direct or indirect investors and agents of such affiliates and assignees) harmless against any and all liabilities, loss, cost or damage, together with all reasonable costs and expenses related thereto (including reasonable legal and accounting fees and expenses), arising from, relating to, or connected with an untrue, inaccurate or breached statement, representation, warranty or covenant of Little Squaw Empire Energy contained herein. Little Squaw Empire Energy undertakes to notify the Subscriber immediately of any change in any representation, warranty or other material information relating to Little Squaw Empire Energy set forth in this Agreement which takes place prior to the Closing Date.
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