Company’s Representations, Warranties and Covenants. 6.1 The Company represents and warrants to the Holders that the following will be true and correct through and including the Exercise Period: 6.1.1 The Company has taken all action necessary and appropriate to properly authorize, reserve, and issue those shares of Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price. 6.1.2 The Common Stock deliverable on the exercise of the Purchase Rights represented hereby shall, when issued, be duly and validly issued, fully paid, and non-assessable, free and clear of all liens and encumbrances. 6.1.3 The Company has all requisite corporate power and corporate authority to issue this Warrant and to carry out and perform its obligations hereunder. 6.1.4 This Warrant is a valid and binding obligation of the Company, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors or other laws affecting the enforcement of creditors’ rights generally, general principles of equity. 6.1.5 The offer, issuance and sale of this Warrant is, and the issuance of Common Stock upon exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock will be exempt from the registration requirements of the Securities Act, and are exempt from the qualification requirements of any applicable state securities laws (the “Exemptions”). 6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances. 6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by the Company and compliance with the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws of the Company, or of any provision of (a) any indebtedness of the Company, (b) any contract, covenant or instrument under which the Company is bound, including, without limitation, any equipment lease, or (c) any judgment, order, ruling, injunction or decree of any court or administrative agency affecting the Company. 6.2 The Company covenants and agrees with the Holders through the Exercise Period as follows: 6.2.1 The Company shall at all times reserve and hold available sufficient shares of Common Stock to satisfy the Purchase Rights. 6.2.2 All shares of Common Stock which may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof. 6.2.3 The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed, and neither the Company nor anyone acting on its behalf will take any action hereafter that would cause the loss of such exemptions. 6.2.4 Unless the Holders consent thereto in writing, the Company shall not amend its Articles of Incorporation prior to the exercise of this Warrant if the Common Stock would be adversely affected by such amendment. 6.2.5 The Company shall secure and maintain the listing of the Common Stock issuable upon exercise of this Warrant and the shares of Common Stock or other securities issuable upon conversion of such Common Stock upon each securities exchange or over-the-counter market upon which securities of the same class or series issued by the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased pursuant to the exercise to be issued in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriate.
Appears in 2 contracts
Samples: Warrant Agreement (Giggles N' Hugs, Inc.), Warrant Agreement (Giggles N' Hugs, Inc.)
Company’s Representations, Warranties and Covenants. 6.1 7.1 The Company hereby represents and warrants to to, and covenants with, the Holders Purchaser, which representations, warranties and covenants shall survive the Closing, that as at the following will be true execution date of this Subscription Agreement and correct through and including the Exercise PeriodClosing Date that:
6.1.1 The (a) the Company has taken is a valid and subsisting corporation duly incorporated and in good standing under the Nevada Revised Statutes (Nevada) and each subsidiary representing 10% or more of the Company’s consolidated assets or revenues (a “Material Subsidiary”) is a valid and subsisting corporation duly created and in good standing under the laws of the jurisdictions in which it exists with respect to all action acts necessary to maintain its corporate existence;
(b) the authorized capital of the Company consists of 37,500,000 Common Shares, with a par value $0.01 per share, of which an aggregate of 29,542,365 Common Shares are issued and appropriate to properly authorize, reserveoutstanding as of the date of this Agreement. As of the date of this Agreement, and issue those shares not including any Common Shares that may be issuable in connection with the Offering, an aggregate of 2,043,750 Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable on Shares may be issued upon the exercise of outstanding options, warrants, convertible debts or any other arrangements, obligations, contracts, understandings or other commitments of any character whatsoever giving any Person any right to subscribe for or acquire any Common Shares by which the Purchase Rights represented hereby shallCompany may be bound. The issuance and sale of the Units, when issuedUnit Shares, be Warrants and Warrant Shares will not obligate the Company to issue any Common Shares or other securities to any Person (other than Purchasers under the Offering), and will not result in a right of any holder of the Company’s securities to adjust the exercise, conversion, exchange or similar price of such securities;
(c) all of the issued and outstanding shares in the capital of each Material Subsidiary have been duly authorized and validly issued, are fully paid, paid and non-assessableare directly or indirectly beneficially owned by the Company, free and clear of any liens, none of the outstanding securities of any Material Subsidiary was issued in violation of the pre-emptive or similar rights of any security holder of such subsidiary and there are no options, warrants, purchase rights, or other contracts or commitments that could require the Company to sell, transfer or otherwise dispose of any securities of any Material Subsidiary, except as disclosed in the Public Record (for the purposes hereof, “Public Record” means all liens documents containing information regarding the Company, including the Company’s audited annual and encumbrances.unaudited interim financial statements for the last two financial years (collectively the “Financial Statements”) filed by the Company with (i) various Canadian securities commissions and available on the System for Electronic Document Analysis and Retrieval (“SEDAR”) website at xxx.xxxxx.xxx, and (ii) the United States Securities and Exchange Commission and available on the Electronic Data Gathering and Retrieval (“XXXXX”) website at xxxxx://xxx.xxx.xxx/xxxxx/);
6.1.3 The (d) prior to the Closing, neither the Company nor any Material Subsidiary will have taken any steps to terminate its existence, to amalgamate or merge into another corporation, to continue into any other jurisdiction or to otherwise change its corporate existence and will not have received any notice or other communication from any person or governmental authority indicating that there exists any situation which could result in the termination of its existence;
(e) the Company and each Material Subsidiary is not insolvent, and no acts or proceedings have been taken by or against it in connection therewith, the Company has not received any notice in respect of, and the Company and each Material Subsidiary is not in the course of, liquidation, winding-up, dissolution, bankruptcy or reorganization;
(f) the Company and each Material Subsidiary has all requisite corporate power and capacity to possess its assets and to conduct its business as now carried on by it or proposed to be carried on by it;
(g) the Company and each Material Subsidiary is duly qualified and registered or licensed to carry on business in the jurisdictions in which it is required to be so registered or licensed to carry on business or own property or assets and, to the Company’s knowledge, is carrying on its business and owns its property and assets, in all material aspects, in accordance with all applicable laws, regulations and other requirements and has not received any notice of a breach thereof which would have a material adverse effect on the Company, except where it is in good faith attempting to remedy such breach or contesting such notice;
(h) neither the Company nor any Material Subsidiary is a party to any actions, suits or proceedings which could materially affect its business or financial condition, and no such actions, suits or proceedings have been threatened or, to the Company’s knowledge, are pending, except as disclosed in the Public Record;
(i) the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business and assets disclosed in the Public Record, all agreements by which the Company holds an interest in a property, business or asset are in good standing according to their terms except as disclosed in the Public Record or where any such default would not have a material adverse effect on the Company;
(j) since July 6, 2017, the Company has timely filed with the relevant authorities all documents required to have been filed by it under the securities laws applicable to it, including, without limitation, all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Laws, the 1933 Act or the United States Securities Exchange Act of 1934, as amended (the “1934 Act”) (such documents, schedules, forms and statements collectively being the “Company Filings”). As of their respective dates, the Company Filings complied in all material respects with the requirements of the applicable securities laws pertaining thereto;
(k) the Public Record and the representations contained in this Subscription Agreement are accurate in all material respects and omit no fact, the omission of which would make the filings comprising the Public Record or such representations misleading in light of the circumstances in which such statements or representations were made;
(l) there is no “material fact” or “material change” (as those terms are defined in applicable Securities Laws) affecting the Company that has not been generally disclosed to the public (without restricting the statutory definition of such terms, a “material fact” is a fact that would reasonably be expected to have a significant effect on the market price or value of the Company’s securities and “material change” is a change (or a decision to implement a change) in the business, operations or capital of the Company that would reasonably be expected to have a significant effect on the market price or value of its securities);
(m) the Financial Statements accurately reflect the financial position of the Company as at the date thereof and have been properly prepared in accordance with accounting principles generally accepted in the United States of America;
(n) no material adverse change in the Company’s financial position has taken place since the date of the latest balance sheet contained in the Financial Statements, except as disclosed in the Public Record;
(o) all tax returns, reports, elections, remittances and payments of the Company and its Material Subsidiaries required by applicable laws have been filed or made, except where the Company is contesting in good faith any re-assessments of its taxes payable thereunder, and are true, complete and correct except where the failure to make such filing, election, or remittance and payment shall not have a material adverse effect on the Company or its business;
(p) the Company has all requisite corporate power and corporate authority to issue this Warrant and sell the Units and to carry out execute, deliver and perform its obligations hereunder.under this Subscription Agreement;
6.1.4 This Warrant (q) the Company has complied, and will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Units;
(r) the execution and delivery of this Subscription Agreement, the offer, sale and issuance of the Units, and the delivery of the certificates representing them, by the Company do not and will not conflict with and do not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement or instrument to which the Company is a party;
(s) this Subscription Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action on the part of the Company and, subject to acceptance by the Company, this Subscription Agreement constitutes a valid and binding obligation of the Company, Company legally binding upon it and enforceable in accordance with its terms, terms subject to such limitations and prohibitions in applicable laws of general application relating to bankruptcy, insolvency, the relief liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of debtors or other laws general application affecting the enforcement rights, powers, privileges, remedies and interests of creditors’ rights creditors generally;
(t) upon issue and delivery at the Closing, general principles of equity.
6.1.5 The offer, issuance the Unit Shares comprising the Units will be validly issued as fully paid and sale of this Warrant is, non-assessable and the Warrants will be validly issued and the certificates representing such Unit Shares and Warrants will be validly delivered;
(u) at the Closing, the Warrant Shares will have been duly allotted and reserved for issuance of Common Stock and, when issued upon the due exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock Warrants, will be exempt from the registration requirements of the Securities Act, duly issued as fully paid and are exempt from the qualification requirements of any applicable state securities laws non-assessable Common Shares;
(the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant v) to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company’s knowledge, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances.
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by neither the Company and compliance with nor its subsidiaries, nor to the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws knowledge of the Company, any director, officer, employee, consultant, representative or of any provision of (a) any indebtedness agent of the Companyforegoing, has (bi) violated any contract, covenant anti-bribery or instrument under which anti-corruption laws applicable to the Company is boundand its subsidiaries, including, without limitation, any equipment leaseincluding but not limited to Canada’s Corruption of Foreign Public Officials Act and the United States Foreign Corrupt Practices Act, or (cii) any judgmentoffered, orderpaid, rulingpromised to pay, injunction or decree authorized the payment of any court money, or administrative agency affecting offered, given, promised to give, or authorized the Company.
6.2 The Company covenants giving of anything of value, that goes beyond what is reasonable and agrees with customary: (A) to any government official, whether directly or through any other person, for the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares purpose of Common Stock influencing any act or decision of a government official in his or her official capacity, inducing a government official to satisfy the Purchase Rights.
6.2.2 All shares do or omit to do any act in violation of Common Stock which may be issued upon the exercise his or her lawful duties, securing any improper advantage, inducing a government official to influence or affect any act or decision of any governmental authority, or assisting any representative of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof.
6.2.3 The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulationits subsidiaries in obtaining or retaining business for or with, or directing business to, any person; or (B) to any person in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any requirements of any domestic securities exchange upon which the Common Stock may be listedimproper advantage, and neither the Company nor anyone its subsidiaries nor to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of foregoing, has (i) conducted or initiated any review, audit, or internal investigation that concluded the Company, a subsidiary or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing, or (ii) made a voluntary, directed, or involuntary disclosure to any governmental authority responsible for enforcing anti-bribery or anti-corruption laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such laws, or received any notice, request, or citation from any person alleging non-compliance with any such laws;
(w) none of the Company, its affiliates, or, to the Company’s knowledge, any person acting on their behalf (other than any finder, as to whose activities no representations or warranties are made) has engaged or will engage in any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D), including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or other form of telecommunications, including electronic display, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising in the United States in connection with the Offering;
(x) none of the Company, its affiliates or, to the Company’s knowledge, any person acting on its or their behalf (other than any finder, as to whose activities no representations or warranties are made) has made or will take make any action hereafter “directed selling efforts” (as such term is defined in Regulation S under the 0000 Xxx) in the United States with respect to the Offering and, without limiting such definition, “directed selling efforts” generally means any activity undertaken for the purpose of, or that would cause could reasonably be expected to have the loss effect of, conditioning the market in the United States for any of such exemptions.the securities being offered and includes placing an advertisement in a publication “with a general circulation in the United States” that refers to the offering of securities being made in reliance upon Regulation S under the 1933 Act;
6.2.4 Unless (y) no order ceasing or suspending trading in the Holders consent thereto in writingUnits nor prohibiting sale of the Units has been issued to, and is outstanding against, the Company shall not amend or its Articles of Incorporation prior directors, officers or promoters and, to the exercise of this Warrant if Company’s knowledge, no investigations or proceedings for such purposes are pending or threatened;
(z) the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure will apply to, and maintain use commercially reasonable efforts to obtain the listing of the Common Stock Unit Shares issuable upon exercise of this Warrant under the Offering on, the Exchange;
(aa) the Company is a reporting issuer under Securities Laws in British Columbia, Alberta and Ontario, and the shares Company is not in default in any material respect of Common Stock or other securities issuable upon conversion any requirement of such Securities Laws;
(bb) the Common Stock upon each Shares are registered under section 12(g) of the 1934 Act and the Company is not in default in any material respect of any requirement under the 1933 Act or the 1934 Act, and the Company has taken no action designed to, or which is likely to have the effect of, terminating the registration of the Common Shares under the 1934 Act, nor has the Company received any notification that the SEC is contemplating terminating such registration;
(cc) the Common Shares are listed for trading on the Exchange and trade on the OTCQB and the Company is not in default in any material respect of any requirement of the Exchange or the OTCQB, and the Company has not received any notice from the Exchange or the OTCQB to the effect that the Company is not in compliance with the listing or maintenance requirements thereof;
(dd) the Company’s registrar and transfer agent for the Common Shares has been duly appointed; and
(ee) there shall not be any consents, approvals, authorizations, orders or agreements of any stock exchanges, securities exchange commissions or over-the-counter market upon similar authorities, governmental agencies or regulators, courts or any other persons which may be required for the issuance of the Units and the delivery of certificates representing the Units to the Purchaser, not obtained and not in effect on the date of delivery of such certificates;
(ff) it will reserve or set aside sufficient shares in its treasury to issue the Unit Shares and Warrant Shares; and
(gg) no general solicitation or general advertising with respect to the sale of the Units offered hereby or of any of the securities of the same class Company has been made or series issued by is being made in relation to or in conjunction with the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased distribution pursuant to the exercise Offering.
7.2 The Company shall perform and carry out all of the acts and things to be issued completed by it as provided in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriatethis Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Silver Bull Resources, Inc.)
Company’s Representations, Warranties and Covenants. 6.1 The Company represents and warrants to the Holders that makes the following will be true representations and correct through warranties (all as of the date on which this Agreement has been executed) and including in addition, makes the Exercise Periodfollowing covenant:
6.1.1 The Company (a) It is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware and is duly qualified to transact business in Indiana, has taken all action necessary the power and appropriate authority to properly authorize, reserveown its properties and assets and to carry on its business as now being conducted and as now contemplated, and issue those shares of Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable on the exercise of the Purchase Rights represented hereby shall, when issued, be duly and validly issued, fully paid, and non-assessable, free and clear of all liens and encumbrances.
6.1.3 The Company has all requisite corporate full power and corporate authority to issue this Warrant the Note and to carry out execute and perform its obligations hereunder.
6.1.4 This Warrant deliver this Agreement, the Reimbursement Agreement and all other agreements contemplated by this Agreement to which the Company is a party all actions necessary for the execution and delivery of the Note, this Agreement and the Indenture have been taken and the Note will be a valid and binding obligation of the Company,
(b) The execution, enforceable in accordance with its terms, subject to laws delivery and performance of general application relating to bankruptcy, insolvencythis Agreement, the relief of debtors or other laws affecting the enforcement of creditors’ rights generally, general principles of equity.
6.1.5 The offer, issuance and sale of this Warrant is, Note and the issuance of Common Stock upon exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock will be exempt from the registration requirements of the Securities Act, and are exempt from the qualification requirements of any applicable state securities laws (the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances.
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by the Company and compliance with the terms and provisions of this Warrant Reimbursement Agreement will not conflict with or result in a breach of the terms and conditions of, or constitute any a default under, the Company's Articles of Incorporation Incorporation, By-Laws, or Bylaws any material agreement or instrument to which the Company is a party or by which it is bound (excepting, however such agreements or instruments with respect to which the Company has been required to and has obtained waivers or consents) or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company, except for the lien of the Indenture and liens, charges or encumbrances in favor of The Mitsui Bank, Limited to secure the obligations of the Company under the Reimbursement Agreement.
(c) At least 95% of the proceeds from the Bonds (including any provision income earned on the investment of (asuch proceeds) will be used for the acquisition and installation of machinery and equipment for the Project. No more than 2% of the proceeds of the Bonds will be used for the costs of issuance of the Bonds, including any indebtedness broker's, underwriter's or placement agent's discount or other compensation. Costs of issuance paid from the Bond proceeds together with any other expenditures which are not described in the first sentence of this subsection will be not more than 5% of the proceeds of the Bonds. No part of the proceeds are to be used by the Company, directly or indirectly, as working capital or to finance inventory.
(bd) any contract, covenant or instrument The Project and all components thereof will consist of property of a character subject to the allowance for depreciation under which the Code.
(e) The indication of interest by the Issuer on the date of adoption of the inducement resolution to issue its Bonds and lend the proceeds to the Company is boundfor the purposes set forth herein has encouraged the Company to acquire and construct the Project, including, without limitation, any equipment leaseand will promote diversification of economic development and create new or preserve existing job opportunities in the area. The Project, or (c) any judgment, order, ruling, injunction or decree of any court or administrative agency affecting the Company.
6.2 The Company covenants and agrees with the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares of Common Stock components thereof which is to satisfy the Purchase Rights.
6.2.2 All shares of Common Stock which may be issued upon the exercise paid for out of the rights represented proceeds of the Bonds, had not been acquired, constructed, equipped, furnished or rehabilitated by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights the Company prior to the adoption of any stockholder and free the inducement resolution of all taxes, liens and charges the Common Council of the Issuer with respect to the issue thereofProject.
6.2.3 (f) The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed, and neither the Company nor anyone acting on its behalf will take any action hereafter that would cause the loss of such exemptions.
6.2.4 Unless the Holders consent thereto in writing, the Company shall not amend its Articles of Incorporation prior to the exercise of this Warrant if the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure and maintain the listing sum of the Common Stock issuable upon exercise of this Warrant and the shares of Common Stock or other securities issuable upon conversion of such Common Stock upon each securities exchange or over-the-counter market upon which securities of the same class or series issued by the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased pursuant to the exercise to be issued in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriate.following does not exceed $10,000,000:
Appears in 1 contract
Samples: Loan Agreement (Elco Industries Inc)
Company’s Representations, Warranties and Covenants. 6.1 The Company represents represents, warrants and warrants covenants to and with the Holders that Subscriber that, as of the following will be true date of this Subscription and correct through and including the Exercise Periodat Closing hereunder:
6.1.1 The (a) the Company has taken all action necessary and appropriate to properly authorize, reserve, and issue those shares of Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable on the exercise of the Purchase Rights represented hereby shall, when issued, be duly and validly issued, fully paid, and non-assessable, free and clear of all liens and encumbrances.
6.1.3 The Company has all requisite corporate power and corporate authority to issue this Warrant and to carry out and perform its obligations hereunder.
6.1.4 This Warrant is a valid and binding obligation subsisting Company duly incorporated and in good standing under the laws of the CompanyProvince of British Columbia;
(b) the Company has complied, enforceable or will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Subscribed Shares;
(c) no offering memorandum has been or will be provided to the Subscriber;
(d) the Company is the beneficial owner of the business and assets referred to in its corporate minute book, all agreements by which the Company holds an interest in a business or asset are in good standing according to their terms and the assets are in good standing under the applicable laws of the jurisdictions in which they are situated;
(e) the Company is duly registered and licensed to carry on business in the jurisdiction in which it carries on business or owns property where required under the laws of the jurisdiction;
(f) the financial statements of the Company accurately reflect the financial position of the Company as at the date thereof and have been prepared in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, Canadian Generally Accepted Accounting Principles;
(g) the relief of debtors or other laws affecting the enforcement of creditors’ rights generally, general principles of equity.
6.1.5 The offer, issuance and sale of this Warrant is, and the issuance of Common Stock upon exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock will be exempt from the registration requirements of the Securities Act, and are exempt from the qualification requirements of any applicable state securities laws (the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances.
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by the Company and compliance with the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws of the Company, or of any provision of (a) any indebtedness of the Company, (b) any contract, covenant or instrument under which the Company is bound, including, without limitation, any equipment lease, or (c) any judgment, order, ruling, injunction or decree of any court or administrative agency affecting the Company.
6.2 The Company covenants and agrees with the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares of Common Stock to satisfy the Purchase Rights.
6.2.2 All shares of Common Stock which may be issued upon the exercise of the rights represented by this Warrant Subscribed Shares will, upon issuanceat the time of issue, be duly authorizedallotted, validly issued, fully paid and nonassessable non-assessable and free from all preemptive rights of any stockholder and will be free of all taxesliens, liens charges and charges with respect to encumbrances and the issue thereof.
6.2.3 The Company will take all such action as may be necessary to assure that such reserve sufficient shares in the treasury of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock may be listed, and neither the Company nor anyone acting on its behalf will take any action hereafter that would cause to enable it to issue the loss of such exemptions.Subscribed Shares;
6.2.4 Unless (h) the Holders consent thereto in writingcreation, the Company shall not amend its Articles of Incorporation prior to the exercise of this Warrant if the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure issuance and maintain the listing sale of the Common Stock issuable upon exercise of this Warrant and the shares of Common Stock or other securities issuable upon conversion of such Common Stock upon each securities exchange or over-the-counter market upon which securities of the same class or series issued Subscribed Shares by the Company are listeddoes not and will not conflict with and does not and will not result in a breach of any of the terms, if any. Upon exercise conditions or provisions of this Warrant, its constating documents or any agreement or instrument to which the Company will use is a party;
(i) this subscription has been duly authorized by all necessary corporate action on the part of the Company and, subject to acceptance by the Company, constitutes a valid obligation of the Company legally binding upon it and enforceable by the Subscriber in accordance with its terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor rights generally and by the effect of general principles of equity (regardless of whether enforcement is considered in proceedings in equity or at law);
(j) the Company is not a party to any actions, suits or proceedings which could materially adversely affect its business or financial condition, and to the best efforts of the Company's knowledge, no such actions, suits or proceedings have been threatened as at the date hereof;
(k) no order prohibiting sale of such Subscribed Shares has been issued against the Company and to cause stock certificates representing the shares best of Common Stock purchased the Company's knowledge no investigations or proceedings for such purposes are pending or threatened; and
(l) the Company has the full corporate right, power and authority to execute this Subscription Agreement, and to issue the Subscribed Shares to the Subscriber pursuant to the exercise to terms of this Subscription Agreement. The Company agrees that the above representations, warranties and covenants will be issued in the names true and correct both as of the Holders, their nominees or assignees, execution of this Subscription Agreement by the Company and as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, Closing Date and will survive the Company will issue the Common Stock in the names purchase of the HoldersSubscribed Shares hereunder, its nominees or assigneesand notwithstanding the subsequent disposition of the Subscribed Shares, as appropriateshall continue in full force and effect for one year from the Closing Date.
Appears in 1 contract
Samples: Subscription Agreement
Company’s Representations, Warranties and Covenants. 6.1 7.1 The Company hereby represents and warrants to to, and covenants with, the Holders Purchaser, which representations, warranties and covenants shall survive the Closing, that as at the following will be true execution date of this Subscription Agreement and correct through and including the Exercise PeriodClosing Date that:
6.1.1 The (a) the Company has taken is a valid and subsisting corporation duly incorporated and in good standing under the Nevada Revised Statutes (Nevada) and each subsidiary representing 10% or more of the Company’s consolidated assets or revenues (a “Material Subsidiary”) is a valid and subsisting corporation duly created and in good standing under the laws of the jurisdictions in which it exists with respect to all action acts necessary to maintain its corporate existence;
(b) the authorized capital of the Company consists of 300,000,000 Common Shares, with a par value $0.01 per share, of which an aggregate of 205,726,342 Common Shares are issued and appropriate to properly authorize, reserveoutstanding as of the date of this Agreement. As of the date of this Agreement, and issue those shares not including any Common Shares that may be issuable in connection with the Offering, an aggregate of 31,823,325 Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable on Shares may be issued upon the exercise of outstanding options, warrants, convertible debts or any other arrangements, obligations, contracts, understandings or other commitments of any character whatsoever giving any Person any right to subscribe for or acquire any Common Shares by which the Purchase Rights represented hereby shallCompany may be bound. The issuance and sale of the Units, when issuedUnit Shares, be Warrants and Warrant Shares will not obligate the Company to issue any Common Shares or other securities to any Person (other than Purchasers under the Offering or the Placement Agent), and will not result in a right of any holder of the Company’s securities to adjust the exercise, conversion, exchange or similar price of such securities;
(c) all of the issued and outstanding shares in the capital of each Material Subsidiary have been duly authorized and validly issued, are fully paid, paid and non-assessableare directly or indirectly beneficially owned by the Company, free and clear of any liens, none of the outstanding securities of any Material Subsidiary was issued in violation of the pre-emptive or similar rights of any security holder of such subsidiary and there are no options, warrants, purchase rights, or other contracts or commitments that could require the Company to sell, transfer or otherwise dispose of any securities of any Material Subsidiary, except as disclosed in the Public Record (for the purposes hereof, “Public Record” means all liens documents containing information regarding the Company, including the Company’s audited annual and encumbrances.unaudited interim financial statements for the last two financial years (collectively the “Financial Statements”) filed by the Company with (i) various Canadian securities commissions and available on the System for Electronic Document Analysis and Retrieval (“SEDAR”) website at xxx.xxxxx.xxx, and (ii) the United States Securities and Exchange Commission and available on the Electronic Data Gathering and Retrieval (“XXXXX”) website at xxxxx://xxx.xxx.xxx/xxxxx/);
6.1.3 The (d) prior to the Closing, neither the Company nor any Material Subsidiary will have taken any steps to terminate its existence, to amalgamate or merge into another corporation, to continue into any other jurisdiction or to otherwise change its corporate existence and will not have received any notice or other communication from any person or governmental authority indicating that there exists any situation which could result in the termination of its existence;
(e) the Company and each Material Subsidiary is not insolvent, and no acts or proceedings have been taken by or against it in connection therewith, the Company has not received any notice in respect of, and the Company and each Material Subsidiary is not in the course of, liquidation, winding-up, dissolution, bankruptcy or reorganization;
(f) the Company and each Material Subsidiary has all requisite corporate power and capacity to possess its assets and to conduct its business as now carried on by it or proposed to be carried on by it;
(g) the Company and each Material Subsidiary is duly qualified and registered or licensed to carry on business in the jurisdictions in which it is required to be so registered or licensed to carry on business or own property or assets and, to the Company’s knowledge, is carrying on its business and owns its property and assets, in all material aspects, in accordance with all applicable laws, regulations and other requirements and has not received any notice of a breach thereof which would have a material adverse effect on the Company, except where it is in good faith attempting to remedy such breach or contesting such notice;
(h) neither the Company nor any Material Subsidiary is a party to any actions, suits or proceedings which could materially affect its business or financial condition, and no such actions, suits or proceedings have been threatened or, to the Company’s knowledge, are pending, except as disclosed in the Public Record;
(i) the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business and assets disclosed in the Public Record, all agreements by which the Company holds an interest in a property, business or asset are in good standing according to their terms except as disclosed in the Public Record or where any such default would not have a material adverse effect on the Company;
(j) since July 6, 2017, the Company has timely filed with the relevant authorities all documents required to have been filed by it under the securities laws applicable to it, including, without limitation, all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Laws, the 1933 Act or the United States Securities Exchange Act of 1934, as amended (the “1934 Act”) (such documents, schedules, forms and statements collectively being the “Company Filings”). As of their respective dates, the Company Filings complied in all material respects with the requirements of the applicable securities laws pertaining thereto;
(k) the Public Record and the representations contained in this Subscription Agreement are accurate in all material respects and omit no fact, the omission of which would make the filings comprising the Public Record or such representations misleading in light of the circumstances in which such statements or representations were made;
(l) there is no “material fact” or “material change” (as those terms are defined in applicable Securities Laws) affecting the Company that has not been generally disclosed to the public (without restricting the statutory definition of such terms, a “material fact” is a fact that would reasonably be expected to have a significant effect on the market price or value of the Company’s securities and “material change” is a change (or a decision to implement a change) in the business, operations or capital of the Company that would reasonably be expected to have a significant effect on the market price or value of its securities);
(m) the Financial Statements accurately reflect the financial position of the Company as at the date thereof and have been properly prepared in accordance with accounting principles generally accepted in the United States of America;
(n) no material adverse change in the Company’s financial position has taken place since the date of the latest balance sheet contained in the Financial Statements, except as disclosed in the Public Record;
(o) all tax returns, reports, elections, remittances and payments of the Company and its Material Subsidiaries required by applicable laws have been filed or made, except where the Company is contesting in good faith any re-assessments of its taxes payable thereunder, and are true, complete and correct except where the failure to make such filing, election, or remittance and payment shall not have a material adverse effect on the Company or its business;
(p) the Company has all requisite corporate power and corporate authority to issue this Warrant and sell the Units and to carry out execute, deliver and perform its obligations hereunder.under this Subscription Agreement;
6.1.4 This Warrant (q) the Company has complied, and will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Units;
(r) the execution and delivery of this Subscription Agreement, the offer, sale and issuance of the Units, and the delivery of the certificates representing them, by the Company do not and will not conflict with and do not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement or instrument to which the Company is a party;
(s) this Subscription Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action on the part of the Company and, subject to acceptance by the Company, this Subscription Agreement constitutes a valid and binding obligation of the Company, Company legally binding upon it and enforceable in accordance with its terms, terms subject to such limitations and prohibitions in applicable laws of general application relating to bankruptcy, insolvency, the relief liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of debtors or other laws general application affecting the enforcement rights, powers, privileges, remedies and interests of creditors’ rights creditors generally;
(t) upon issue and delivery at the Closing, general principles of equity.
6.1.5 The offer, issuance the Unit Shares comprising the Units will be validly issued as fully paid and sale of this Warrant is, non-assessable and the Warrants will be validly issued and the certificates representing such Unit Shares and Warrants will be validly delivered;
(u) at the Closing, the Warrant Shares will have been duly allotted and reserved for issuance of Common Stock and, when issued upon the due exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock Warrants, will be exempt from the registration requirements of the Securities Act, duly issued as fully paid and are exempt from the qualification requirements of any applicable state securities laws non-assessable Common Shares;
(the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant v) to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company’ knowledge, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances.
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by neither the Company and compliance with nor its subsidiaries, nor to the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws knowledge of the Company, any director, officer, employee, consultant, representative or of any provision of (a) any indebtedness agent of the Companyforegoing, has (bi) violated any contract, covenant anti-bribery or instrument under which anti-corruption laws applicable to the Company is boundand its subsidiaries, including, without limitation, any equipment leaseincluding but not limited to Canada’s Corruption of Foreign Public Officials Act and the United States Foreign Corrupt Practices Act, or (cii) any judgmentoffered, orderpaid, rulingpromised to pay, injunction or decree authorized the payment of any court money, or administrative agency affecting offered, given, promised to give, or authorized the Company.
6.2 The Company covenants giving of anything of value, that goes beyond what is reasonable and agrees with customary: (A) to any government official, whether directly or through any other person, for the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares purpose of Common Stock influencing any act or decision of a government official in his or her official capacity, inducing a government official to satisfy the Purchase Rights.
6.2.2 All shares do or omit to do any act in violation of Common Stock which may be issued upon the exercise his or her lawful duties, securing any improper advantage, inducing a government official to influence or affect any act or decision of any governmental authority, or assisting any representative of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof.
6.2.3 The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulationits subsidiaries in obtaining or retaining business for or with, or directing business to, any person; or (B) to any person in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any requirements of any domestic securities exchange upon which the Common Stock may be listedimproper advantage, and neither the Company nor anyone its subsidiaries nor to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of foregoing, has (i) conducted or initiated any review, audit, or internal investigation that concluded the Company, a subsidiary or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing, or (ii) made a voluntary, directed, or involuntary disclosure to any governmental authority responsible for enforcing anti-bribery or anti-corruption laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such laws, or received any notice, request, or citation from any person alleging non-compliance with any such laws;
(w) none of the Company, its affiliates, or , to the Company’s knowledge, any person acting on their behalf (other than the Placement Agent or any finder, as to whose activities no representations or warranties are made) has engaged or will engage in any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D), including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or other form of telecommunications, including electronic display, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising in the United States in connection with the Offering;
(x) none of the Company, its affiliates or, to the Company’s knowledge, any person acting on its or their behalf (other than the Placement Agent or any finder, as to whose activities no representations or warranties are made) has made or will take make any action hereafter “directed selling efforts” (as such term is defined in Regulation S under the 0000 Xxx) in the United States with respect to the Offering and, without limiting such definition, “directed selling efforts” generally means any activity undertaken for the purpose of, or that would cause could reasonably be expected to have the loss effect of, conditioning the market in the United States for any of such exemptions.the securities being offered and includes placing an advertisement in a publication “with a general circulation in the United States” that refers to the offering of securities being made in reliance upon Regulation S under the 1933 Act;
6.2.4 Unless (y) no order ceasing or suspending trading in the Holders consent thereto in writingUnits nor prohibiting sale of the Units has been issued to, and is outstanding against, the Company shall not amend or its Articles of Incorporation prior directors, officers or promoters and, to the exercise of this Warrant if Company’s knowledge, no investigations or proceedings for such purposes are pending or threatened;
(z) the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure will apply to, and maintain use commercially reasonable efforts to obtain the listing of the Common Stock Unit Shares issuable upon exercise of this Warrant under the Offering on, the Exchange;
(aa) the Company is a reporting issuer under Securities Laws in British Columbia, Alberta and Ontario, and the shares Company is not in default in any material respect of Common Stock or other securities issuable upon conversion any requirement of such Securities Laws;
(bb) the Common Stock upon each Shares are registered under section 12(g) of the 1934 Act and the Company is not in default in any material respect of any requirement under the 1933 Act or the 1934 Act, and the Company has taken no action designed to, or which is likely to have the effect of, terminating the registration of the Common Shares under the 1934 Act, nor has the Company received any notification that the SEC is contemplating terminating such registration;
(cc) the Common Shares are listed for trading on the Exchange and trade on the OTCQB and the Company is not in default in any material respect of any requirement of the Exchange or the OTCQB, and the Company has not received any notice from the Exchange or the OTCQB to the effect that the Company is not in compliance with the listing or maintenance requirements thereof;
(dd) the Company’s registrar and transfer agent for the Common Shares has been duly appointed; and
(ee) there shall not be any consents, approvals, authorizations, orders or agreements of any stock exchanges, securities exchange commissions or over-the-counter market upon similar authorities, governmental agencies or regulators, courts or any other persons which may be required for the issuance of the Units and the delivery of certificates representing the Units to the Purchaser, not obtained and not in effect on the date of delivery of such certificates;
(ff) it will reserve or set aside sufficient shares in its treasury to issue the Unit Shares and Warrant Shares; and
(gg) no general solicitation or general advertising with respect to the sale of the Units offered hereby or of any of the securities of the same class Company has been made or series issued by is being made in relation to or in conjunction with the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased distribution pursuant to the exercise Offering.
7.2 The Company shall perform and carry out all of the acts and things to be issued completed by it as provided in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriatethis Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Silver Bull Resources, Inc.)
Company’s Representations, Warranties and Covenants. 6.1 The Except as set forth in the Schedules attached as Schedule 9 hereto (the “Disclosure Schedules” or the “Schedules”), which Disclosure Schedules may be updated by the Company on or prior to the Closing Date if the Company becomes aware of a factual circumstance after the Effective Date that would render one or more representations and warranties in this Section 9 inaccurate in any material respect (or result in a breach of Section 9 in any material respect) but for the Company’s provision of updated Disclosure Schedules to the Purchaser (such updated Disclosure Schedules, the “Updated Disclosure Schedules”), the Company represents and warrants to the Holders that Purchaser as of the following will Effective Date and the Closing Date (except for such representations and warranties which by their terms speak only as of a specific date or dates, which representations and warranties shall be true and correct through and including the Exercise Periodmade as of such date) as follows:
6.1.1 The 9.1 the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has taken all action necessary corporate power and appropriate authority to properly authorizeown, reserveoperate or lease, and issue those shares of Common Stock issuable sell, the properties and assets now owned, operated or leased by it and to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable carry on the exercise of Business;
9.2 the Purchase Rights represented hereby shall, when issued, be duly and validly issued, fully paid, and non-assessable, free and clear of all liens and encumbrances.
6.1.3 The Company has all requisite corporate power and corporate authority to issue this Warrant and enter into the Transaction Agreements, to carry out and perform its obligations hereunder.thereunder and to consummate the transactions contemplated thereby;
6.1.4 This Warrant 9.3 the execution and delivery by Company of the Transaction Agreements to which it is a party, the performance by Company of its obligations thereunder and the consummation by Company of the transactions contemplated thereby have been duly authorized by all requisite corporate action on the part of the Company;
9.4 this Agreement has been duly executed and delivered by the Company, and (assuming due authorization, execution and delivery by the Purchaser and each other party) this Agreement constitutes a legal, valid and binding obligation of the Company, Company enforceable against Company in accordance with its terms, subject to except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to bankruptcy, insolvency, the relief of debtors or other laws affecting the enforcement of creditors’ rights generally, general principles and (ii) as limited by laws relating to the availability of equity.specific performance, injunctive relief, or other equitable remedies,
6.1.5 The offer9.5 the Company is either (i) the sole owner of the Purchased Assets and of all rights, issuance title and sale interest in the Purchased Assets or (ii) the holder of such rights to the Purchased Assets as are set forth in Section 9.12, and any Purchased Assets constituting proprietary Intellectual Property were created for the Company’s account (solely by its employees, consultants, and independent contractors) and not for the account of (or in the course of work for) any party other than the Company and not as a work made for hire for any party other than the Company;
9.6 the Company has all necessary corporate power and authority to make the assignment contemplated by Section 1 hereof and to otherwise enter into and perform this Warrant isAgreement, and has written enforceable agreements with all persons necessary to give it the rights to do the foregoing and to otherwise fully perform this Agreement, including without limitation, assignments of all right, title and interest with respect to any and all Purchased Assets from all its employees and other persons who may have in any way created or contributed to the Purchased Assets, and the issuance of Common Stock upon exercise of this Warrant and the issuance of Common Stock upon conversion Company has not previously transferred or given any exclusive license or right to any third party with respect to any of the Common Stock Purchased Assets;
9.7 the Purchased Assets will be exempt from assigned and delivered free and clear of all Encumbrances;
9.8 the registration requirements Company has no obligations or liabilities (whether accrued, absolute, contingent, unliquidated or otherwise, whether or not known to Company, whether due or to become due and regardless of when or by whom asserted) in excess of $25,000 arising out of transactions entered into at or prior to the Closing Date, or any action or inaction at or prior to the Closing Date, or any state of facts existing at or prior to the Closing Date, except as set forth on the Disclosure Schedules;
9.9 none of the Securities ActPurchased Assets, and are exempt from nor the qualification requirements development, manufacture, use, importation, distribution, offering for sale, or sale by or for the Company of any applicable state securities laws (products or services in the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant Business prior to the provisions of this Warrant will not violate any preemptive rights Closing, currently infringe, misappropriate or rights of first refusal granted by the Company, and are or will be, as applicable, in compliance with all applicable federal and state securities lawsviolate, and will be free of not infringe, misappropriate or violate, any liens third-party intellectual property, industrial property or encumbrances.proprietary rights;
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by the Company and compliance with the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws of the Company, or of any provision of (a) any indebtedness of the Company, (b) any contract, covenant or instrument under which 9.10 the Company is bound, including, without limitation, not aware of any equipment leaseclaim (or any basis or purported basis for a claim) by any third party against the Company or the Parent, or (c) any judgmentof their respective current or former stockholders, orderdirectors, rulingofficers, injunction employees, contractors, consultants, or decree Affiliates, relating in any way to any of the Purchased Assets and has no reason to expect that any court or administrative agency affecting the Company.
6.2 The Company covenants and agrees with the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares of Common Stock to satisfy the Purchase Rights.
6.2.2 All shares of Common Stock which such claim may be issued upon forthcoming;
9.11 other than as set forth in Schedule 9.11, the exercise of the rights represented by this Warrant will, upon Purchased Assets do not contain any Intellectual Property (as defined below) that is subject to any issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof.
6.2.3 The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulationregistration, or of application with any requirements of governmental entity or authorized private registrar in any domestic securities exchange upon which the Common Stock may be listedjurisdiction including but not limited to (i) patents and pending patent applications, including any and all extensions, continuations, continuations-in-part, divisions, reissues, reexaminations, substitutes, renewals, and neither the Company nor anyone acting on its behalf will take any action hereafter that would cause the loss of such exemptions.
6.2.4 Unless the Holders consent thereto in writing, the Company shall not amend its Articles of Incorporation prior to the exercise of this Warrant if the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure foreign counterparts thereof; (ii) trademark registrations and maintain the listing of the Common Stock issuable upon exercise of this Warrant pending trademark registration applications; (iii) copyright registrations and the shares of Common Stock or other securities issuable upon conversion of such Common Stock upon each securities exchange or over-the-counter market upon which securities of the same class or series issued by the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased pursuant to the exercise to be issued in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriate.pending copyright registration applications; and (iv) domain name registrations and pending domain name registration;
Appears in 1 contract
Company’s Representations, Warranties and Covenants. 6.1 7.1 The Company hereby represents and warrants to to, and covenants with, the Holders Purchaser, which representations, warranties and covenants shall survive the Closing, that as at the following will be true execution date of this Subscription Agreement and correct through and including the Exercise PeriodClosing Date that:
6.1.1 The (a) the Company has taken is a valid and subsisting corporation duly incorporated and in good standing under the Nevada Revised Statutes (Nevada) and each subsidiary representing 10% or more of the Company’s consolidated assets or revenues (a “Material Subsidiary”) is a valid and subsisting corporation duly created and in good standing under the laws of the jurisdictions in which it exists with respect to all action acts necessary to maintain its corporate existence;
(b) the authorized capital of the Company consists of 300,000,000 Common Shares, with a par value $0.01 per share, of which an aggregate of 205,726,342 Common Shares are issued and appropriate to properly authorize, reserveoutstanding as of the date of this Agreement. As of the date of this Agreement, and issue those shares not including any Common Shares that may be issuable in connection with the Offering, an aggregate of 31,823,325 Common Stock issuable to the Holders pursuant to this Warrant including an authorization of issuance and setting of Exercise Price.
6.1.2 The Common Stock deliverable on Shares may be issued upon the exercise of outstanding options, warrants, convertible debts or any other arrangements, obligations, contracts, understandings or other commitments of any character whatsoever giving any Person any right to subscribe for or acquire any Common Shares by which the Purchase Rights represented hereby shallCompany may be bound. The issuance and sale of the Units, when issuedUnit Shares, be Warrants and Warrant Shares will not obligate the Company to issue any Common Shares or other securities to any Person (other than Purchasers under the Offering or any placement agent), and will not result in a right of any holder of the Company’s securities to adjust the exercise, conversion, exchange or similar price of such securities;
(c) all of the issued and outstanding shares in the capital of each Material Subsidiary have been duly authorized and validly issued, are fully paid, paid and non-assessableare directly or indirectly beneficially owned by the Company, free and clear of any liens, none of the outstanding securities of any Material Subsidiary was issued in violation of the pre-emptive or similar rights of any security holder of such subsidiary and there are no options, warrants, purchase rights, or other contracts or commitments that could require the Company to sell, transfer or otherwise dispose of any securities of any Material Subsidiary, except as disclosed in the Public Record (for the purposes hereof, “Public Record” means all liens documents containing information regarding the Company, including the Company’s audited annual and encumbrances.unaudited interim financial statements for the last two financial years (collectively the “Financial Statements”) filed by the Company with (i) various Canadian securities commissions and available on the System for Electronic Document Analysis and Retrieval (“SEDAR”) website at xxx.xxxxx.xxx, and (ii) the United States Securities and Exchange Commission and available on the Electronic Data Gathering and Retrieval (“XXXXX”) website at xxxxx://xxx.xxx.xxx/xxxxx/);
6.1.3 The (d) prior to the Closing, neither the Company nor any Material Subsidiary will have taken any steps to terminate its existence, to amalgamate or merge into another corporation, to continue into any other jurisdiction or to otherwise change its corporate existence and will not have received any notice or other communication from any person or governmental authority indicating that there exists any situation which could result in the termination of its existence;
(e) the Company and each Material Subsidiary is not insolvent, and no acts or proceedings have been taken by or against it in connection therewith, the Company has not received any notice in respect of, and the Company and each Material Subsidiary is not in the course of, liquidation, winding-up, dissolution, bankruptcy or reorganization;
(f) the Company and each Material Subsidiary has all requisite corporate power and capacity to possess its assets and to conduct its business as now carried on by it or proposed to be carried on by it;
(g) the Company and each Material Subsidiary is duly qualified and registered or licensed to carry on business in the jurisdictions in which it is required to be so registered or licensed to carry on business or own property or assets and, to the Company’s knowledge, is carrying on its business and owns its property and assets, in all material aspects, in accordance with all applicable laws, regulations and other requirements and has not received any notice of a breach thereof which would have a material adverse effect on the Company, except where it is in good faith attempting to remedy such breach or contesting such notice;
(h) neither the Company nor any Material Subsidiary is a party to any actions, suits or proceedings which could materially affect its business or financial condition, and no such actions, suits or proceedings have been threatened or, to the Company’s knowledge, are pending, except as disclosed in the Public Record;
(i) the Company is the beneficial owner of the properties, business and assets or the interests in the properties, business and assets disclosed in the Public Record, all agreements by which the Company holds an interest in a property, business or asset are in good standing according to their terms except as disclosed in the Public Record or where any such default would not have a material adverse effect on the Company;
(j) since July 6, 2017, the Company has timely filed with the relevant authorities all documents required to have been filed by it under the securities laws applicable to it, including, without limitation, all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Laws, the 1933 Act or the United States Securities Exchange Act of 1934, as amended (the “1934 Act”) (such documents, schedules, forms and statements collectively being the “Company Filings”). As of their respective dates, the Company Filings complied in all material respects with the requirements of the applicable securities laws pertaining thereto;
(k) the Public Record and the representations contained in this Subscription Agreement are accurate in all material respects and omit no fact, the omission of which would make the filings comprising the Public Record or such representations misleading in light of the circumstances in which such statements or representations were made;
(l) there is no “material fact” or “material change” (as those terms are defined in applicable Securities Laws) affecting the Company that has not been generally disclosed to the public (without restricting the statutory definition of such terms, a “material fact” is a fact that would reasonably be expected to have a significant effect on the market price or value of the Company’s securities and “material change” is a change (or a decision to implement a change) in the business, operations or capital of the Company that would reasonably be expected to have a significant effect on the market price or value of its securities);
(m) the Financial Statements accurately reflect the financial position of the Company as at the date thereof and have been properly prepared in accordance with accounting principles generally accepted in the United States of America;
(n) no material adverse change in the Company’s financial position has taken place since the date of the latest balance sheet contained in the Financial Statements, except as disclosed in the Public Record;
(o) all tax returns, reports, elections, remittances and payments of the Company and its Material Subsidiaries required by applicable laws have been filed or made, except where the Company is contesting in good faith any re-assessments of its taxes payable thereunder, and are true, complete and correct except where the failure to make such filing, election, or remittance and payment shall not have a material adverse effect on the Company or its business;
(p) the Company has all requisite corporate power and corporate authority to issue this Warrant and sell the Units and to carry out execute, deliver and perform its obligations hereunder.under this Subscription Agreement;
6.1.4 This Warrant (q) the Company has complied, and will comply, with all applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Units;
(r) the execution and delivery of this Subscription Agreement, the offer, sale and issuance of the Units, and the delivery of the certificates representing them, by the Company do not and will not conflict with and do not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement or instrument to which the Company is a party;
(s) this Subscription Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action on the part of the Company and, subject to acceptance by the Company, this Subscription Agreement constitutes a valid and binding obligation of the Company, Company legally binding upon it and enforceable in accordance with its terms, terms subject to such limitations and prohibitions in applicable laws of general application relating to bankruptcy, insolvency, the relief liquidation, moratorium, reorganization, arrangement or winding-up and other laws, rules and regulations of debtors or other laws general application affecting the enforcement rights, powers, privileges, remedies and interests of creditors’ rights creditors generally;
(t) upon issue and delivery at the Closing, general principles of equity.
6.1.5 The offer, issuance the Unit Shares comprising the Units will be validly issued as fully paid and sale of this Warrant is, non-assessable and the Warrants will be validly issued and the certificates representing such Unit Shares and Warrants will be validly delivered;
(u) at the Closing, the Warrant Shares will have been duly allotted and reserved for issuance of Common Stock and, when issued upon the due exercise of this Warrant and the issuance of Common Stock upon conversion of the Common Stock Warrants, will be exempt from the registration requirements of the Securities Act, duly issued as fully paid and are exempt from the qualification requirements of any applicable state securities laws non-assessable Common Shares;
(the “Exemptions”).
6.1.6 The issuance of this Warrant and the Common Stock issuable upon the exercise hereof pursuant v) to the provisions of this Warrant will not violate any preemptive rights or rights of first refusal granted by the Company’ knowledge, and are or will be, as applicable, in compliance with all applicable federal and state securities laws, and will be free of any liens or encumbrances.
6.1.7 The execution and delivery of this Warrant and the consummation of the other transactions contemplated herein, the carrying on of the business as currently conducted by neither the Company and compliance with nor its subsidiaries, nor to the terms and provisions of this Warrant will not conflict with or result in a breach of the terms and conditions of, or constitute any default under, the Articles of Incorporation or Bylaws knowledge of the Company, any director, officer, employee, consultant, representative or of any provision of (a) any indebtedness agent of the Companyforegoing, has (bi) violated any contract, covenant anti-bribery or instrument under which anti-corruption laws applicable to the Company is boundand its subsidiaries, including, without limitation, any equipment leaseincluding but not limited to Canada’s Corruption of Foreign Public Officials Act and the United States Foreign Corrupt Practices Act, or (cii) any judgmentoffered, orderpaid, rulingpromised to pay, injunction or decree authorized the payment of any court money, or administrative agency affecting offered, given, promised to give, or authorized the Company.
6.2 The Company covenants giving of anything of value, that goes beyond what is reasonable and agrees with customary: (A) to any government official, whether directly or through any other person, for the Holders through the Exercise Period as follows:
6.2.1 The Company shall at all times reserve and hold available sufficient shares purpose of Common Stock influencing any act or decision of a government official in his or her official capacity, inducing a government official to satisfy the Purchase Rights.
6.2.2 All shares do or omit to do any act in violation of Common Stock which may be issued upon the exercise his or her lawful duties, securing any improper advantage, inducing a government official to influence or affect any act or decision of any governmental authority, or assisting any representative of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens and charges with respect to the issue thereof.
6.2.3 The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulationits subsidiaries in obtaining or retaining business for or with, or directing business to, any person; or (B) to any person in a manner which would constitute or have the purpose or effect of public or commercial bribery, or the acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or any requirements of any domestic securities exchange upon which the Common Stock may be listedimproper advantage, and neither the Company nor anyone its subsidiaries nor to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of foregoing, has (i) conducted or initiated any review, audit, or internal investigation that concluded the Company, a subsidiary or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing, or (ii) made a voluntary, directed, or involuntary disclosure to any governmental authority responsible for enforcing anti-bribery or anti-corruption laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such laws, or received any notice, request, or citation from any person alleging non-compliance with any such laws;
(w) none of the Company, its affiliates, or , to the Company’s knowledge, any person acting on their behalf (other than any finder, as to whose activities no representations or warranties are made) has engaged or will engage in any form of “general solicitation” or “general advertising” (as those terms are used in Regulation D), including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television, or other form of telecommunications, including electronic display, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising in the United States in connection with the Offering;
(x) none of the Company, its affiliates or, to the Company’s knowledge, any person acting on its or their behalf (other than the Placement Agent or any finder, as to whose activities no representations or warranties are made) has made or will take make any action hereafter “directed selling efforts” (as such term is defined in Regulation S under the 0000 Xxx) in the United States with respect to the Offering and, without limiting such definition, “directed selling efforts” generally means any activity undertaken for the purpose of, or that would cause could reasonably be expected to have the loss effect of, conditioning the market in the United States for any of such exemptions.the securities being offered and includes placing an advertisement in a publication “with a general circulation in the United States” that refers to the offering of securities being made in reliance upon Regulation S under the 1933 Act;
6.2.4 Unless (y) no order ceasing or suspending trading in the Holders consent thereto in writingUnits nor prohibiting sale of the Units has been issued to, and is outstanding against, the Company shall not amend or its Articles of Incorporation prior directors, officers or promoters and, to the exercise of this Warrant if Company’s knowledge, no investigations or proceedings for such purposes are pending or threatened;
(z) the Common Stock would be adversely affected by such amendment.
6.2.5 The Company shall secure will apply to, and maintain use commercially reasonable efforts to obtain the listing of the Common Stock Unit Shares issuable upon exercise of this Warrant under the Offering on, the Exchange;
(aa) the Company is a reporting issuer under Securities Laws in British Columbia, Alberta and Ontario, and the shares Company is not in default in any material respect of Common Stock or other securities issuable upon conversion any requirement of such Securities Laws;
(bb) the Common Stock upon each Shares are registered under section 12(g) of the 1934 Act and the Company is not in default in any material respect of any requirement under the 1933 Act or the 1934 Act, and the Company has taken no action designed to, or which is likely to have the effect of, terminating the registration of the Common Shares under the 1934 Act, nor has the Company received any notification that the SEC is contemplating terminating such registration;
(cc) the Common Shares are listed for trading on the Exchange and trade on the OTCQB and the Company is not in default in any material respect of any requirement of the Exchange or the OTCQB, and the Company has not received any notice from the Exchange or the OTCQB to the effect that the Company is not in compliance with the listing or maintenance requirements thereof;
(dd) the Company’s registrar and transfer agent for the Common Shares has been duly appointed; and
(ee) there shall not be any consents, approvals, authorizations, orders or agreements of any stock exchanges, securities exchange commissions or over-the-counter market upon similar authorities, governmental agencies or regulators, courts or any other persons which may be required for the issuance of the Units and the delivery of certificates representing the Units to the Purchaser, not obtained and not in effect on the date of delivery of such certificates;
(ff) it will reserve or set aside sufficient shares in its treasury to issue the Unit Shares and Warrant Shares; and
(gg) no general solicitation or general advertising with respect to the sale of the Units offered hereby or of any of the securities of the same class Company has been made or series issued by is being made in relation to or in conjunction with the Company are listed, if any. Upon exercise of this Warrant, the Company will use its best efforts to cause stock certificates representing the shares of Common Stock purchased distribution pursuant to the exercise Offering.
7.2 The Company shall perform and carry out all of the acts and things to be issued completed by it as provided in the names of the Holders, their nominees or assignees, as appropriate at the time of such exercise. Upon conversion of the shares of Common Stock into shares of Common Stock, the Company will issue the Common Stock in the names of the Holders, its nominees or assignees, as appropriatethis Subscription Agreement.
Appears in 1 contract
Samples: Subscription Agreement (Silver Bull Resources, Inc.)
